The nature of the equitable is a correction of the law where it is defective owing to its universality"

        Litigants seeking redress which the common law courts were not affording them most frequently turned to parliament in Ireland. In its early form the parliament was more in the nature of the emanation of the kings council in England. By the fifteenth century, it had taken on a form of effectively three 'estates' consisting of peers, commons and lower clergy. Petitions, which in England were addressed to the Chancellor, in Ireland were presented to these parliaments, and as in England they sought relief on many fronts. Their theme, like that of the English petitions or bills, tends to be conscience, what has been done to the oppressed petitioner is ' against law and conscience ', 'without conscience or reason', or 'without right, just title, conscience and law.' the complaints of the petitioners reflect vividly the extent to which the common law courts had deteriorated.

        In the latter half of the fifteenth century, parliament continued to play a prominent part in the granting of equitable part in the granting of equitable relief. But with the passing of Poynings' Law 1494, its activities in this area were significantly reduced, the judicial work which it had formerly undertaken being carried out now by the King's Council and the developing court of chancery. With the appointment of Masters in Chancery and of leading clerics to the post of Keeper of the Rolls, its administrative shortcomings were to some extent remedied. The court heard a wide variety than supplant the common law. It was also prepared to enforce Gaelic customs, but not where the result was considered inequitable. The position of Chancellor was still head from time to time by ecclesiastics such as the commanding figure of  Archbishop Loftus in Tudor times and his nephew of the same name under the Stuarts but from the sixteenth century it was increasingly common for the chancellor to be a lawyer. 

        After the ill starred experiment of 'surrender and regrant' under which the Gaelic chiefs were confirmed in the ownership of their lands in return for acknowledging that they held them from the crown, the Tudor monarchy embarked on its policy of bringing the entire island under its control by military force. Ulster was to prove the last redoubt of the old Gaelic world which collapsed with the flight of the earls , O'Neill and O'Donnell, in 1603. the Brehon laws were replaced by English law, a process seen at work in the cases recorded by Sir John Davies, who was successively solicitor-general and attorney-general in Ireland from 1603 to 1619. Most notably in the Case of Tanistry, we find the court of the King's Bench holding that the Gaelic custom was contrary to English law.

        Therefore in the seventeenth century, English law was extended to the whole island and from that time onwards, the history of equity in Ireland is essentially the history of the application of the developing English law of equity to the neighbouring island.  

THE DEVELOPMENT OF MODERN EQUITY

        As aforementioned Lord Nottingham was often referred to as the ' father of modern equity'. The reasons behind this title are that before his time, the chancellors reliance on conscience  meant that cases in his court tended to be decided by reference to what justice of the case seemed to require rather than any fixed principles. That justice reflected on occasions the religious aura of the office, as witness this outburst by Archbishop Morton: “ Every law should be in accordance with the law of God; and the law of God is that an executor who fraudulently misapplies the goods and does not make restitution will be damned in hell and to remedy this is to accord with conscience as I understand it.”  Also the infamous Seldon comment in relation to the chancellor's foot affected the introduction of the doctrine of precedent under which general principles are extracted from particular cases and applied to resolve similar cases thereafter. This doctrine was rarely used in the chancery before Nottingham's time: as late as 1670 Vaughen CJ was expressing surprise that precedents should be cited in a court of equity. Nottingham, however, made it clear that he considered some of his decisions as being of general application. While his was a court of conscience, it was conscience as embodied in legal principles rather than any particular religious code, still less in the private conscience of the chancellor as it responded to individual cases. Much of the systemisation of equity began with the chancellorship of  Lord Nottingham (1673-1682 ) until the time of Lord Eldon ( 1801-1806 and 1807-1827). the price of systemisation was that by the beginning of the nineteenth century, the principles of equity were nearly as rigid as the common law rules. As Lord Eldon commented in Gee v. Pritchard “ Nothing would inflict on me greater pain, in quitting this place (the office of chancellor) than the recollection that I had done anything to justify the reproach that the equity of this Court varies like the Chancellor's foot”

         Lord Nottingham did much to weld together, consolidate and stiffen the whole system. To him we owe the doctrine that there can be no “clog on the equity of redemption”, a classification of trusts, and the modern rule against perpetuities. Throughout the eighteenth century, equity, in a period of legislative stagnation, became the great force that moulded the progress of the law right up to the beginning of the nineteenth century. In this time too the presumption of advancement makes its first appearance in rebuttal of the presumption of the resulting trust: where B is A's father, it is presumed that he intended to make a gift of the property to his son. The significant part played by equity in the development of the mortgage (ie) the borrowing of money on the security of land, is also evident in this period The idea of transferring land as security for repayment of a loan was known to the common law, but our modern sophisticated structure of rules is principally the product of Chancery protection of the mortgagor against the mortgagee.

         Nottingham's stress on defining legal principles was of particular significance in the developing law of trusts and it was shaped to meet entirely new conditions of social life; equity took in hand the administration of the estates of deceased persons, on which depend the doctrines of election, satisfaction,ademption, performance and the marshaling of assets. In this period there were many great Chancellor's, Talbot (1733-37), Hardwicke (1737-60), Camden (1766-71), Thurlow (1778-93), culminating in Lord Eldon (1801-06, 1807-27)one of the greatest lawyers. His decisions were thorough, painstaking learned and clear. As Holdsworth said: “ he had a thorough grasp of existing rules and principles; but he looked as anxiously into all the facts and circumstances of each case...as if there were no such rules and as if, therefore, he was under the necessity of determining each case as one of first impression.”His judgements were masterly, but it was hardly surprising that the business of the court was scandalously in arrears. The pattern and principles of equity were now established. It was during this time that equity first represented a real challenge to the common law , and the possibility of a conflict between legal and equitable principles became more realistic. Nine special cases of possible conflict were first dealt with. These were the following:

1. the order of priority of payment of debts of a person dying insolvent.
2. The period of limitation applicable to claims against express trustees.
3. The extent of the liability for waste committed by the owners of limited interests in land.
4. The right of a mortgagor t bring an action for possession against a third person without joining the mortgagee.
5. The rule that merger of estates depends on intent and is not automatic.
6. The refusal of the common law but not of equity to recognise the assignment of debts and choses in action.
7. The power of granting injunctions and appointing receivers.
8. The rules relating to the custody and education of infants.
9. The indulgence with which equity regarded the unpunctual compliance with stipulations not of the essence of contracts.

          The emergence of equity as an independent, systemised body of law meant that for the time it could actually challenge the operation of the common law. Nevertheless, despite fears expressed by many common law judges, it was very unlikely that equity would ever threaten the operation of the common law; the whole purpose of equity was to work with the common law in order to achieve a more universalised justice. Equity was dependent upon common law and was not set up to overwhelm it. As Maitland notes, equity was never self-sufficient; at every point it 'presumed the existence of the common law'. If the common law was abolished or destroyed, equity could no longer operate as a correction of the existing law; it would have no foundation. Considered in this light, the possibility of a conflict was improbable. This did not prevent the development of widespread fear and uncertainty about the exact character of the relationship between the common law and equity. This was one of the primary incentives for the introduction of the Judicature system in 1873.

THE JUDICATURE ACTS 1873 AND 1875

        The two courts had become “ not rivals but partners in the work of administering justice” the time had come for the fusion of these jurisdictions into a single Supreme Court. Some limited steps were taken towards this fusion in the middle of the nineteenth century. The Common Law Procedure Act 1854 gave to the common law courts a certain power to give equitable remedies, and the Chancery Amendment Act 1858, commonly known as the Lord Cairns' Act, gave to the Court of Chancery power to award damages in addition to, or in substitution for, an injunction or a decree of specific performance. In Ireland these powers were created by the Common Law Procedure Amendment Act 1856. The major change however came with the Judicature Acts of 1873 and 1875 in England and subsequently followed in Ireland by the Supreme Court of Judicature (Ireland ) Act 1877. this Act established one Supreme Court of Judicature and replaced the system of separate courts exercising common law and equitable jurisdiction. This court was to have two divisions, the High Court of Justice, which possessed both original and appellate jurisdiction and the Court of Appeal which exercised a purely appellate function. The High Court itself was initially divided into five divisions – Chancery, Queen's Bench, Common Pleas, Exchequer and Probate and Matrimonial. In 1887 the Common Pleas Division was merged with the Queen's Bench and in 1897 so were the Exchequer and Probate and Matrimonial Divisions so that by the end of the century, only the Chancery and Queen's Bench Divisions remained. The fusion of the administration of legal and equitable jurisdiction was continued with the enactment of the Courts of Justice Act 1924 which established a High Court and Supreme Court to take the place of the Supreme Court of Judicature and this structure was continued by the Courts ( Establishment and Constitution ) Act 1961. however, as Kiely has stated : “ The intrinsic difference between legal and equitable rights and remedies remains unaffected”.

          There was one obvious problem bound to arise as a result of the fusion of the two courts this being how would the new system deal with any conflicting judgements between the legal and the equitable principles? Chancery often came into conflict with the common law and the crisis arose in the Earl of Oxford's Case, when the Lord Chancellor issued an injunction to prevent the party enforcing a common law judgement. The dispute was referred to James I who referred the matter to his attorney general – Sir Francis Bacon, he decided that in cases of conflict the rules of equity should prevail. This is now laid down in statute in S.28(11) of the Supreme Court  of Judicature (Ireland ) Act 1877 .

        The generally accepted opinion at the time of the enactment of the Judicature Act was that the result of the legislation was to effect a fusion of administration rather than a fusion of the principles of both the common law and equity. Jessel MR remarked in Salt v. Cooper in relation to this issue “ but it was not any fusion, or anything of the kind, it was the vesting in one tribunal the administration of law and equity, in every case, action or dispute which should come before the tribunal”. It is argued that equity is still a distinct body of law. In Ashburner on Equity 1902, it was said “ the two streams of jurisdiction, though they run in the same channel run side by side and do not mingle their waters”, (ie.) that they are still two distinct systems. This view was also well summarised by Delany in the following terms: The Judicature Acts fused the common law and equity ; they created a substantially uniform system of procedure and pleading; and they provided that in the case of  'conflict of variance' the rules of equity should prevail. But there was nothing more than a fusion of jurisdiction, procedure and pleading; the substantive rules themselves remained.

        Some judges have claimed that there has been a complete fusion of common law and equity. For example in Hynes Ltd. v. Independent Newspaper  O'Higgins CJ said “ In Ireland the fusion of the common law and equitable rules was initiated by the Supreme Court (Ireland) Act 1877 and was completed by the Courts Act 1924 and the Courts Act 1961”. In that case a clause as to time in a contract was held not to be essential, since the parties had not expressed it to be so. This is the rule in equity, under the common law rule it would have been invalid.

        However there is another view that common law and equity are distinct parts of our law even though administered in the same courts. Arguments put forward have include that the distinction between the two systems of law rests on solid foundations and remains part of our law until the Oireachtais (the only legal tribunal competent to do so) has announced its

removal. Hanbury and Martin's concluding comments on this subject probably come closest to summing up the existing position: What can be said is that a century of fused jurisdiction has seen the two systems working more closely together; each changing and developing and improving from contact with each other; and each willing to accept new ideas and developments, regardless of their origin. They are coming closer together. But they have not yet fused. 

HOW EQUITY HAS ADAPTED AND EXPANDED

        The second question that has been asked is how has equity adapted and expanded so as to ensure its vibrancy in todays ever changing world, and is the infamous statement of Aristotle relevant today? To answer this question it is necessary to look at the maxims of equity. The maxims of equity constitute the general principles developed by the Court of Chancery over the years; as Mason CJ stated in Corrin v. Patton an equitable maxim is a ' summary statement of a broad theme which underlines equitable concepts and principles'. While they are not to be interpreted as positive rules of law which should always be applied in their literal sense, they do reflect general trends which can be discerned from the manner in which the equitable jurisdiction of the courts have been exercised. 

        The maxims of equity are generally regarded as the following:

1. Equity follows the law.
2. Equity will not suffer a wrong to be without a remedy.
3. Equity acts in personam.
4. He who seeks equity must do equity.
5. He who comes into equity must come with clean hands
6. Delay defeats equity.
7. Equality is equity.
8. Equity looks to the intent rather than the form.
9. Equity looks on that as done which ought to be done.
10. Equity imputes as intention to fulfill an obligation.
11. Where the equities are equal, the first in time prevails.
12. Where the equities are equal, the law prevails.

        An understanding of the maxims of equity provides a knowledge of the meaning of equity. One maxim in particular which will help answer the above question is that equity will not suffer a wrong to be without a remedy. The principle which lies behind this maxim is that equity will intervene to protect a recognised right which for some reason is not enforceable at common law            and it reflects the basis for the origins of the equitable jurisdiction of the chancellor. However as equitable jurisdiction became more established, it also grew increasingly formalised and based on precedent. As Greene MR commented in Re Diplock 'if a claim in equity exists it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction'. Commentators have pointed out that this maxim should be treated with considerable caution today. Wylie has commented that ' it is grossly inaccurate statement of equity's approach in modern times' and Meagher, Gummow and Lehane stress that it is misleading unless one realises that the maxim is now of 'purely historical importance'. Despite its potentially misleading nature, there are nevertheless some important practical illustrations of the operation of the maxim which can be seen today. Perhaps the most far reaching of these is the recognition given by equity to the concept of the trust by virtue of which a beneficiary can enforce equitable rights which the common law would not recognise, as it simply regarded the trustee as the legal owner.         Other notable illustrations of the maxim can be found in relation to the grant of equitable remedies. The injunction developed as a means of achieving justice where the common law remedy of damages could not provide an adequate. One type of an injunction is the 'Mareva Injunction'.this was introduced as a result of a number of decisions of the English Court of Appeal  in the mid 1970s. the previous law was that the courts would not grant an injunction to restrain a defendant from dealing with or dissipating his assets prior to the trial of an action. After the 1970s decisions the position was that sn injunction may be granted to prevent a defendant from removing assets from the jurisdiction in a manner likely to frustrate the plaintiff's proceedings. More recently it has been accepted that an injunction of this nature may even extend to assets held outside the jurisdiction on a worldwide basis. This is an example of how the nature of equity is ever expanding and adapting to the needs of todays ever changing society. The birth of the Mareva injunction can be traced back to the English Court of Appeal decision in Nippon Yusen Kaisha v. Karageorgis, in which Lord Denning MR stated that ' it seems to me that the time has come when we should revise our practice'. In this case the plaintiff shipowners let a number of ships to charterers who defaulted after initially making some payments. believing that the defendants had certain funds in London banks which would be sent out of the jurisdiction, the plaintiff sought an injunction to prevent this from happening. The Court of Appeal held that where there is a strong prima facie case that a plaintiff is entitled to money from a defendant may remove these assets from the jurisdiction and the plaintiff has reason to believe that the defendant may remove these assets from the jurisdiction, the court may grant an interlocutory injunction on an ex parte basis restraining the defendant from disposing of these assets. This principle was confirmed several weeks later in Mareva Compania Naveria SA v. International Bulkcarriers SA, the decision which gave its name to the form of the injunction granted in these cases.

        Initially the Mareva injunction evolved as a remedy against foreign based defendants who possessed assets within the jurisdiction of the court and while it was thought at one time that such injunctions could only issue against such foreign based defendants, this limitation has been eroded by the courts. In both Fleming v. Ranks (Ireland) Ltd  and Powerscourt Estates v. Gallagher McWilliam J accepted that the types of cases in which Mareva injunctions may be granted are not confined to those where the defendant is resident outside the State.

        One of the most significant developments in relation to Mareva injunctions in recent years has been the willingness of the courts to make such orders in respect of assets outside the jurisdiction on a worldwide basis. Originally Mareva injunctions were of a more limited nature as Dillon LJ commented in Ashtiani v. Kaishi: ' the basis of the jurisdiction, as it seems to me, is clearly limited to the assets within the jurisdiction of this court '. In a series of decisions in the late 1980s, the English Court of Appeal extended the scope of the Mareva injunctions to cover worldwide assets. In  Babanaft International Co, SA v. Bassatne  such an order was granted against the defendants who held assets in a number of foreign jurisdictions as well as in England and against whom judgement in the sum of $15 million had been obtained. Kerr LJ concluded that ' in appropriate cases, though they may well be rare, there is nothing to preclude our courts from granting Mareva type injunctions against defendants which extend to their assets outside the jurisdiction. This development was accepted by the Irish High Court in  Deutsche Bank Atkiengsellschaft v.  Murtagh . here the plaintiff sought an order restraining the defendants from dealing with extra- territorial assets. Costello J was satisfied that 'the court has jurisdiction to restrain the dissipation of extra-territorial assets where such an order is warranted by the facts'. He said that it was well established in England that a Mareva injunction may extend to foreign assets and that he believed Irish courts had similar powers to avoid frustration of subsequent orders.

        This development in both the English and subsequently the Irish courts highlights the fact that Aristotle's statement is still relevant in todays ever changing society and equity is ever changing and adapting to suit society's needs.

        Another remedy developed by equity is the Anton Piller order. These were developed as a means of dealing with cases where there is serious risk that a defendant may destroy or otherwise dispose of material in his possession which may be of vital importance to the plaintiff if he is to establish his claim at a trial. The practice of making orders of this nature developed in England in the mid 1970s. The jurisdiction to do so was confirmed by the English Court of Appeal in Anton Piller KG v. Manufacturing Processes Ltd, the decision which gave its name to the form of order. The plaintiffs claimed that the defendants were selling confidential information to their competitors which they had obtained in their capacity as selling agents for the plaintiff's electrical equipment and sought access to documents on the defendant's premises. The Court of Appeal made an ex parte order permitting the plaintiffs to enter the defendant's premises to inspect, remove or make copies of documents relating to the equipment.

        Donaldson LJ has commented that the Mareva along with the Anton Piller order are 'two nuclear weapons ' of the law. If equity had a purpose other than being there to correct the law where it has failed then these two 'nuclear weapons'  might never have been recognised by the courts and therefore we would be left with an unjust legal system.

        Another equitable remedy that has adapted to suit the changing society is proprietary estoppel. In order to found a claim based on proprietary estoppel, it has always been accepted that it is necessary that there should have been some form of assurance of entitlement given by the person whom it is sought to estop. However, it has recently been accepted that a claim of proprietary estoppel may succeed on the basis of acts undertaken not in reliance on the fact that the claimant had existing rights but on the faith of an undertaking that such rights would be granted in the future. In Re Basham Edward Nugee QC held in granting the declaration sought that the principle of proprietary estoppel was not limited to acts done in reliance on a belief that future rights would be granted. In addition he accepted that estoppel could extend to non-specific property. The decision in Basham also broke new ground in that Edward Nugee QC appeared to hold that proprietary estoppel will give rise to a constructive trust.

        Perhaps one of the most controversial recent developments in the area of equitable estoppel has been the judgment of Costello J in Re J.R.. The committee of an elderly ward of court, who was living in a psychiatric hospital and was unable to manage his own affairs, sought to effect the sale of his house which had fallen into a dilapidated state. He had been living there with the respondent for many years and she maintained that when she went to live with him ha had presented to her that he would look after her and she would be sure of a home for the rest of her life. In his will the ward left everything to the respondent and at the time of its execution said that it was no longer his house but their house and that it would eventually be her house. Costello J concluded that the respondent had acted to her detriment on the representation made to her at the time she went  to live with the ward that thereafter she could be sure of a home in his house for the rest of her life . He said that accordingly she had made out a case of promissory estoppel as she had acted on the representation made to her. ' It would be plainly inequitable for the ward now to deny that she has a right to live in this house and it seems to me that she has an equity which entitles her to stay in this house rent free for as long as she wishes to which the court must give effect.'  

        While the result achieved was clearly an equitable and fair one in the circumstances, there are a number of difficulties with the reasoning employed by Costello J such as that he appears to hold that promissory estoppel is capable of creating proprietary rights. Also Costelloj's treatment of the concept of detriment in that he appeared to treat it as one of the requirements of promissory estoppel. While detriment is undoubtedly a requirement in establishing proprietary estoppel, there is a conflicting authority on the question of the need to establish it in cases of promissory estoppel. On the facts in front of the case in front of him. Costello J appears to accept that the respondent had acted to her detriment although it could be said that he was prepared to assume its existence as no reference was made to the respondent's circumstances before she moved in with the ward. 

        This case is a prime example of how the judges have the power to expand the standing of the current law to provide an equitable relief.

                                

CONCLUSION

        “The nature of the equitable is a correction of the law where it is defective owing to its universality”. As has been shown through the history of equity, this branch of law was established to provide relief when the common law failed in doing so. Equity has had a long and ever changing history but the main theme running through all the developments is to provide fairness. Even in todays busy society the theme is still the same. It would appear that Aristotle's statement is still extremley relevant today. Equity appears to easily adapt and expand in response to the changing demands of todays world and seems it shall continue to follow this path.

        

                                

BIBLIOGRAPHY

1. Keane J., Equity and the law of Trusts in the republic of Ireland, Buttersworth, London, 1988.

2. Hilary Delany, Equity and the law of Trusts in Ireland, Round Hall Sweet and Maxwell, Dublin, 1995.

3. Samantha Hepburn, Principles of Equity and Trusts,(2nd edition), Cavendish Publishing Ltd. London 2001.

4. Jill E. Martin, Hanbury and Martin, Modern Equity, (16th edition), Sweet and Maxwell, London 2001.

5. Baker and Langan, Snell's Equity, (29th edition),  Sweet and Maxwell, London, 1990.

6. Keeton and Sheridan, Equity (3rd edition), Barry Rose Books, Kluwer Law Publishers, Great Britain, 1987.

RESULT: 80%!!!!!

                                

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