How To Write a 1st Class Law Essay (Practical Example)
Instead of giving you hypotheticals, we have pulled out a first class law essay from a Russell Group university student. This essay was copied and pasted from a word document so some of the formatting may have been lost. Nevertheless, this law essay example should give you an idea how to structure and reference your essay. Please do not copy this essay. This essay does not provide legal advice.
Assess the contribution to the development of equity of John Scott, Earl of Eldon (1751-1838).
Introduction:
This essay will begin by assessing the traditional role of equity as a ‘court of conscience’. Equity will be defined in the area of natural law as a tool used for correcting the unconscionability in areas where common law is so vague and general. The essay will then progress to explore how Lord Eldon affected the ad hoc and in personam nature of equity through his adherence to precedence through a series of case law. This will therefore set the scene for the major theme of this essay: whether equity can be reconciled with common law. The answer to this question will come in a form of a debate of whether more systematised and regulated form of equity can still act as a ‘court of conscience’ in providing justice by coming closer to positive (common) law without being subsumed by it. The first debate, advanced by Roscoe, is that by introducing the notion of precedent into equity, Lord Eldon had contributed to the decay of the Court of Chancery because equity had lost its characteristic of providing justice in personam and was rather more concerned to adhere to precedent rather than provide justice in individual cases. The essay will set this ‘decadence’ of equity in the context of increased laissez faire and free of contract reining the current day’s society, as well as the fact that other lawyers shared and expressed the same sentiment as Lord Eldon. This ‘decadence’ argument will be advanced even further to suggest and argue that common law and equity had become ossified during the time of Lord Eldon and that the Judicature Acts 1873-1875 did no more than complete the fusion of two jurisdictions. The essay will then continue to consider the development equity in the twentieth century and will aim to show that equity is no longer based on ad hoc decisions, rather it has become more regulated by precedent. This idea will be addressed through decisions by Lord Denning who tried to introduce the broad rule of justice. However, it will be shown how Lord Denning’s ‘palm tree’ justice has come to be disregarded by higher courts, and the idea of precedent and systematisation came to prevail in the hope of certainty. Despite this development the essay will address whether equity is still a ‘court of conscience’ with its closer siding with positive law. It will be shown that the ‘residual category of unconscionability’ is perhaps the answer to the conflict between common law and equity since it contains experience of community’s view on unconscionability and at the same time provides the flexibility for equitable principles and doctrines to be expanded even further.
To gain a valuable explanation of the role of Equity and the application of its principles and doctrines it is very useful to begin with a statement of Lord Ellesmere in the Earl of Oxford’s Case[1] where he argues that ‘men’s actions are so diverse and infinite that it is impossible to make any general law which will aptly meet with every particular and not fail in some circumstances. The office of the Chancellor is to correct men’s consciences for fraud, breaches of trust, wrongs and oppressions...and to soften and mollify the extremity of the law’.[2] This original idea that Equity was conscience driven was confirmed by the House of Lord more recently in the Westdeutsche v Islington Borough Council[3] where Lord Browne-Wilkinson said that ‘equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purposes for which the property was vested in him or which the law imposes on him by reason of his unconscionable conduct’.[4] It can thus be evidenced so far that the touchstone of Equity is its in personam nature of mitigating the rigors of common law where it would produce injustice and unconscionability or to use the famous metaphor of Maitland, Equity provides ‘equitable gloss’[5] where the common law is rigid and unable to produce justice.
English law allows both common law and equity to be exercised in one court which may in turn cause conflict. The common law system is based around the notion of precedent and is thus concerned with form (i.e. legal requirements). Equity however, is concerned with personal rights and prevention of unconscionability where the law is general or too universal to achieve justice in each individual case. It can thus be deduced that the common law lays out the rules and established the legal requirements whereas the function of equity is to regulate the common law where it is vague and universal so as to produce unconscionable outcome. The role of equity can be best seen as Epieikeia where equity is’just, and is superior to one sort of justice, it is not superior to absolute justice (ou tou haplos), but only to the error (hamartema) due to its absolute statement (dia to haplos)...it is a rectification (epanorthoma) of law where law is defective because of its generality. In fact this is the reason why things are not all determined by law: it is because there are cases for which it is impossible to lay down a law, so that a special ordinance becomes necessary’.[6]
From the analysis so far, we paint a picture that equity was a court of conscience where every case was decided on its merits as opposed to precedent. Therefore since Chancellor’s would eventually be replaced, the exercise of power and more importantly discretion would vary according to each Chancellor’s perception of justice. In the famous case of Gee v. Pritchard[7] the varying perception of each Chancellor’s justice was described in the metaphor of a Chancellor’s foot. Lord Eldon thus explained that ‘[t]he doctrines of this Court ought to be as well settled and as uniform, almost, as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed by every succeeding judge.[8] Lord Eldon was described as one of the best equity lawyers[9] who developed the principles of equity to make sure that they were as settled as those of the common law. This essay will now briefly illustrate how Lord Eldon achieved this.
Judgments of Lord Eldon display an adherence to the general rule and precedent rather than ‘individualised justice’ traditionally associated with equity. In Jackson v Petrie[10] Lord Eldon was fully aware that the decision ‘in this instance may finally operate to create injustice’ however, he ‘cannot act otherwise than the rule and principle, practice and usage of the Court authorize’.[11] In Ex parte Whitbread[12] he is of strong opinion that the doctrine ‘ought never to have been established’, but he is disinclined to depart from it as he is bound by the ‘decisions that have taken place during a period of thirty years’.[13] In Davis v Duke of Marlborough[14] Lord Denning says that it is not ‘the duty of a Judge in equity to vary rules, or to say that rules are not to be considered as fully settled here as in a court of law’.[15] Attorney-General v Vigor[16] summarises Lord Eldon’s general attitude towards precedent: he is reluctant to ‘incur the risk of shaking the authorities’.[17]
It is now important to consider Lord Eldon’s view of the principles upon which the Court of Chancery exists. These principles are not listed by Lord Eldon explicitly and therefore remain a part of surmise. These principles can be best related to the idea of equity as ‘particular justice’. Klinck argues that the “adjective ‘particular’ may be related especially to the ‘flexibility’ values said to characterise equity, while the noun ‘justice’ may be seen as relating to the substantive criteria upon which decisions in equity are made”. ‘Flexibility values’ are said to encompass the philosophy that equity is characterised by principles rather than rules, by discretion, and by a concern with substance rather than form. Whereas ‘justice’ can be seen as relating to more substantive content, the precise thing a court is searching for when making ‘flexible’ decisions. ‘Conscience’ is a bridge in this context, it is synonymous with in personam existence of equity, and also has a substantive dimension.
Equity’s flexibility is evident in its emancipation from formalism, a feature of common law. There is general consensus that equity regards the spirit and not the letter of the law. Lord Eldon supports this view in several instances. In Clarke v. Parker a case concerned with the question about the validity of trustees’ consent to a beneficiary’s marriage, he speaks that there are “many cases” in which the court has thought itself at “liberty to conceive consent to have been given substantially”[18] Lord Eldon conveys the difficulty in his anti-literalist approach, Lord Eldon in most cases is found struggling with words that “are strong and difficult to manage”.[19] The authorities are ultimately triumphant over Lord Eldon’s resistance over the constraints of words, for he recedes that it is his “duty to follow them”.[20] Although Lord Eldon does show a willingness to depart from one kind of formalism on the basis of a more compelling kind of formalism, commonly known as precedent.
The notion of ‘conscience’ is another feature of the equitable jurisdiction. The invocation of ‘conscience’ is thought to have a substantive content, a part of equitable adjudication. ‘Conscience’ provides standards “which the courts of equity enforce”[21] It is now worth to examine this substantive content of ‘conscience’ in the judgments by Lord Eldon. From what we can gather so far, we would instinctively expect Lord Eldon to display a chary attitude toward ‘conscience’ as it seems to be subjective and variable. Lord Eldon aligns himself with Selden’s view that Chancellor’s conscience is variable and therefore rogue. However, he does acquiesce to the centrality of ‘conscience’ in equitable jurisdiction. The notion of ‘conscience’ thus requires that information in certain circumstances to be “imparted to a dowress”,[22] that it may be “against conscience” to decide against the renewal of a lease[23] or for a tenant to devise a term in a lease against the landlord[24] or for a party to contract to take advantage of fraud or misconduct[25] or for someone to be “allowed to keep his purchase-money and to retain possession also”[26]or for a plaintiff to “be twice paid the same debt.”[27] This handful of examples helps to indicate Lord Eldon’s acceptance of proposition that equity may “interpose upon grounds of conscience.”[28] In some cases Lord Eldon makes an attempt to distinguish legal from the equitable, especially Chancery’s concern for the defendant’s conscience. In Wild v. Hobson, he proposes that by bringing a bill in equity, a plaintiff addresses the “conscience of the defendant”.[29] The court may well “sift...the conscience of [a] party”.[30] The search is thus for something that affects conscience, or something that amounts to “obligation of conscience.”[31] Equity thus acts “upon the conscience of all parties.”[32] Lord Eldon however prefers to speak about the “conscience of the Court.”[33] This can be reflected in a number of cases, in one case he said that “the Court, guided by its conscience”[34] and in another “the Judge in equity...may collect from the whole that may satisfy his conscience”.[35]
Now it is important to consider the notion of ‘justice’. Both common law and equity are concerned with justice, but equity is more willing to resort to ‘justice’ than is the common law. Roscoe Pound characterises equity as a form of “justice without, or beyond law”.[36] It is thus a type of pure justice, a direct antithesis to the ruledness of positive law.[37] This can be best interpreted in the light of Aristotle’s argument that equity is “perfecting the justice of the positive law”.[38] So far, it can be observed that Lord Eldon displays loyalty to positive law, binding and invariable rules. Therefore, whenever he makes any allusion to justice, it is subordinate to positive law. It is worth to briefly go back to Jackson v. Petrie, where the “refusal of the writ...may finally operate to create justice...[Lord Eldon] cannot act otherwise than the rule and principle, practice and usage, of the Court authorise”.[39] Similarly in Hill v. Barclay Lord Eldon resorts to an established and simple rule, ‘imperfect and unjust’ as its operation may be in some cases, and adopts a stance that the court cannot make decisions on what is just in each case.[40] In other scenarios, it is worth observing that Lord Eldon’s invocation of justice is done in conjunction with equitable notions. In Cholmendley v. Clinton for instance even though Lord Eldon must base his decision on a ‘general principle’, he does recognise that it ‘would be unjust to prevent the party from going into the particular circumstances’.[41] In Vowles v. Young Lord Eldon permitted the possibility to ‘annex such terms...as will do complete justice’ on a re-hearing,[42] and in Jenkins v. Milford, the court instigates an arrangement capable for being modified ‘when necessary for the sake of justice’.[43]
At other times, Lord Eldon links the ‘justice’ concept to one of the established maxims of equity such as in Lord Courtney v. Godshall where Lord Eldon is dubious whether there can be any justice in directing an examination after a long lapse of time.[44] Elsewhere, Lord Eldon focuses on the ‘justice’ administered by the court of equity. For example, in Rowe v. Teed Lord Eldon outlines the difference between law and equity lays in that ‘for the sake of convenience...of justice, the denial of some fact...in some circumstances...has to be considered sufficient to constitute a good plea’.[45] This difference of justice in the law courts and the court of equity is once again referred to in Mackenzie v. Mackenzie where Lord Eldon notes that ‘the justice, due to [other creditors] requires the interposition of a Court of Equity to relieve against an action, which except upon equitable principles, could not be resisted’.[46] Lord Eldon frequently espouses the view that ‘justice’ may be the major consideration in a court of equity. In Princess of Wales v. Earl of Liverpool Lord Eldon proposes that ‘there is no general rule with respect to the practice of this court that will not yield to the demands of justice’ and quite naturally there are occasions when ‘the strict rule has been sacrificed to the justice of a particular case’.[47]
Whenever Lord Eldon alludes to natural or moral justice, he still insists that it must be in line with the general principle. Often, Lord Eldon’s allusions to natural or moral justice are constructed around some type of natural equity within the court. In Vancouver v. Bliss he accentuates the established doctrine, a doctrine based upon ‘principles of both morality and justice’[48] that who fails in a suit for specific performance bears the costs. In Ex parte Stephens Lord Eldon speaks of the doctrine of equitable set-off that is premised upon natural equity and if ‘the Court...find[s] a natural equity, going beyond the statute’[49] its construction will not go beyond what the law would undertake. Although there are cases when ‘natural’ justice takes a front seat, namely when positive rule is non-existent. For example, in Burroughs v. Elton, Lord Eldon fails to find a precedent and hesitates to construct one, but he finds cases ‘in which ‘natural justice required it as strongly upon other circumstances as this case’.[50] In Ex parte Thistlewood Lord Eldon finds no established rule and instead resorts to moral justice by holding that ‘in moral justice that cannot be the rule’ because ‘what moral justice is there in giving the vendor the benefit in the constitution of the bargain and also in its close under an entire change of circumstances...?’[51]
Although Lord Eldon’s approach places a great amount of certainty and predictability on adherence to precedent, it must be remembered that this kind of dicta could have been ‘something more than judicial commonplaces’.[52] For example Sir William Grant shared a similar support for precedent as he holds that ‘the question is decided and at rest and is not to be overhauled here’,[53] and he refused to ‘go further...than [he was] forced to do by precedent’.[54]
When proceedings were brought to trial the relief to the claimant was provided on a more systematised and rigid basis than had been the case with the traditional equity jurisdiction. Equity, in developing its principles, ‘was once less concerned with the effect of the decision on the body of precedent than with the suppression of injustice in the individual case’[55], but a change in the opposite direction happened at the Chancellorship of Lord Eldon. Roscoe Pound spoke of this as the ‘decadence of equity’.[56] This decline or ‘decadence’ of equity can also be attributed to the economic climate of the time, namely the rise of formalism and the rise of laissez faire which ushered a period of freedom of contract where parties left to their own bargaining to decide their interests. The judges were therefore less willing to intervene and have grown respect for the freedom of contract where a bargain that suited the parties was left alone and not interfered with. It can be seen that the Chancery had departed from its traditional role of providing in personam treatment to individual circumstances displaying traits of unconscionability in support of adherence to precedent and lack of desire to expand the doctrines and principles of equity. It is therefore wise to maintain that the modern critiques of equity jurisprudence ‘echo Pound’s concerns about the extent to which equity has become subsumed by law with the resulting diminution of individualised justice’.[57] Interestingly, there was even a suggestion that the common law and equity have shown a closer interaction with each other, a process which has been described as ‘ossification’.[58] It can therefore be argued that by adhering to the notion of precedent, equity became more rigid and bore a closer resemblance to the positive law, to that extent it began to bear a closer resemblance to common law. As a result ‘the very act of becoming a system, it becomes legalized, and in becoming merely a competing system of law insures is ultimate downfall’.[59] This debate could thus progress to the debate on fusion of common law and equity. I would thus like to propose that to a certain both judicial and economic adherence, and favouring of systematisation and rigidity, has ultimately deprived equity of its traditional in personam characteristic and the Judicature Act 1873-1875 did no more than fuse the two jurisdictions by completing a process that was partly offset by Lord Eldon along with the judicial tradition of the time as well as economic laissez faire.
The question today is thus whether equity can still be regarded as a ‘court of conscience’ especially given the developments towards a greater systematisation and rigidity of equitable jurisdiction. The position in the 20th century was that equity is beyond childbearing. Harman LJ proposed that equity principles had been ‘rather too often bandied about in the common law courts as though the Chancellor still had only the length of his foot to measure when coming to a conclusion’.[60] There were even suggestions that new rights and remedies should therefore be left to be developed by the Parliament and not the judges. In Western Fish Products Ltd v Penwith District Council[61]Megaw LJ supported the view of Harman LJ mentioned above in that ‘the system of equity has become a very precise one. The creation of new rights and remedies is a matter for Parliament, not the judges’.[62] However, it is also correct to maintain that equity still operates as a court of conscience especially in the light of remarks by Jessel MR that ‘the rules of Courts of equity are not supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time- altered, improved and refined from time to time. The doctrines are progressive, refined and improved’.[63]
The general consensus today is that equity is now a system of precedent rather than ad hoc decision making process. The rationale for this current state of affairs is the potential for uncertainty that can be conferred unto the legal system through unprincipled and idiosyncratic decisions. This can be best illustrated through the ‘deserted wife’ cases of the 1970s and Lord Denning’s attempt to bring to life a ‘new model constructive trust’. During the 1970s Denning was especially concerned with promoting the idea of individual justice which was neatly reflected in his cases involving family and cohabitee disputes. This was mainly due to the lack of protection of proprietary rights of cohabitees and spouses in land co-occupied with their partners. In Bendall v McWhirter[64] Denning LJ conferred a ‘deserted wife’s equity’ on a wife who made no contributions to the purchase nor had any title in the husband’s property to bind a purchaser. In National Provincial Bank Ltd v Ainsworth[65]dismissed Denning’s deserted wife’s equity because it was very isolated from any identifiable property right and was therefore a decision that unveiled great uncertainty.
In Eves v Eves[66] Lord Denning commented that ‘a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing. One of her latest progeny is a constructive trust of a new model’.[67] This new model of constructive trust attempted to achieve broad justice in the sense that since husband and wife were living together, they intended to share their home. Denning’s grounds for imposing such a trust was based on a case that was founded on principles of equity that can be utilised ‘whenever justice and good conscience required it’.[68] The 1970s thus saw numerous attempts by Denning to introduce wide principles of equity but all were unsuccessful as far as the higher courts were concerned. This was due to the fact that such broad principles of justice or palm tree justice would result as a result of unfettered discretion and subsequently leave to uncertainty.[69] To bring thee point home I am inclined to refer to Bagnall J, who in Cowcher v Cowcher[70] said that ‘[I] am convinced that in determining rights, particularly property rights, the only justice that can be attained by mortals, who are fallible and are not omniscient, is justice according to law; the justice that flows from the application of sure and settled principles to proved or admitted facts. So in the field of equity the length of the Chancellor’s foot has been measured or is capable of being measured’.[71]
In recent years there have been several indications that there is a potential for the development of a new model constructive trust which may well serve as a restitutionary remedy to reverse unjust enrichment. However, English case law is somehow suggesting that it is reluctant to broad notions of justice, but does that therefore mean that modern equity has no scope for development? In Westdeutsche v Islington LBC[72] attempts to give us some guidance on modern equity. In this case his Lordship explained that ‘equity operates on the conscience of the owner of the legal interest. In the case of a trust, the conscience of the legal owner requires him to carry out the purpose for which the property was vested in him or which the law imposes on him by reason of his unconscionable conduct’.[73] Therefore the possibility of a broad concept of justice based on a new model was addressed in the same case where the judge explained that ‘ although the resulting trust is an unsuitable basis for developing proprietary restitutionary remedies, the remedial constructive trust, if introduced into English law, may provide a more satisfactory road forward. However, whether English law should follow the United States and Canada by adopting the remedial constructive trust will have to be decided in some future case where the point is directly in issue’.[74]
This essay will now address the fundamental question of whether equity can still be considered as a ‘court of conscience’ despite the fact that it has become more systematised and is now disallowed from producing broad justice. It would be right to assert that legal decisions ‘are informed by past decisions and past values nowhere more than in the application of discretionary concepts such as reasonableness and unconscionability’.[75] Innovations in equity needn’t be based on a broad and idiosyncratic notions of justice, instead it is important to realise that ‘the view that the court can disregard legal and equitable rights and simply do what is fair is not supported in England...and it is contrary to established doctrine in Australia’.[76] Interestingly, Rossiter and Stone point out that unconscionability is simply a matter of legal experience, or rather an opinion generated by the society, and we ‘encapsulate this experience in the categories of equitable relief that we define and as the tradition develops and values change we may create further categories, delete other or expand those we have presently’.[77] This ‘residual category of unconscionability’ was recognised in Hospital Products Ltd. V United States Surgical Corporation[78] and directly answers the problem of precedent posed by Gary Watt who acknowledges that a precedent is problematic in the sense that one must ‘know how long to follow it’.[79] Watt explains that to overcome this problem one must follow precedent ‘longer than mere fashion would dictate’ but ‘no so long that justice is locked up’.[80] Residual category of unconscionability can deliver the same solution as Watt proposes since it is based on the idea of precedent which means that it will certainly operate longer than ‘fashion’ and would not be replaced by ad hoc or ‘broad justice’ decisions, and simultaneously the flexibility to expand the categories of equity according to the preferences of the society, will not lock up the justice. It is evident therefore that the ‘residual category of unconscionability’ provides a good balance between justice and certainty and overall coherence in law and is a valid answer to today’s increased need for individualised justice. However, Rossiter and Stone have given a few warnings regarding the residual category of unconscionability, namely that ‘confusion among the categories can occur. A judge who is not entirely satisfied to rely on the residual category of unconscionability may endeavour to fit the situation at hand into an established category. The result may be to diminish or destroy the value of the established category without any corresponding advantage’.[81]
In conclusion, the aim of this essay was to show how Lord Eldon contributed to the development of equity. The essay highlighted that Lord Eldon’s major contribution to equity was his strict adherence to precedent and established rules. This can be contrasted against the traditional role of equity, namely to correct and mitigate the harshness of common law where it is universal and thus unable to tailor to individual justice. I briefly refer to equity through the scope of natural law to show that it exists as Maitland’s famous ‘gloss’ needed to supplement the shortcomings of common law. The decisions of Lord Eldon however establish a very strict and almost blind compliance to positive law, namely through the concept of precedent. This thus set the stage for a discourse as to whether equity can still fulfil its traditional in personam function of treating unconscionability and supplementing the shortcomings of common law. Critics such as Pound argue that especially this adherence to precedent has lead to the decline or ‘decadence’ of equity since the judges were more concerned about adhering to precedent then trying to cure unconscionability in each case. This can thus be argued to have brought equity closer to common law and allowed it to ‘decay’ and become subsumed into positive law. There were even arguments that the development of equity is now so stifled that it is now beyond child bearing and any forthcoming developments in the jurisdiction should be left to the Parliament. It can therefore be maintained that equity today is no longer characterised through ad hoc decisions but rather through adherence to precedent. This is due to the danger of introducing uncertainty into law through ‘broad justice’ brought about by Lord Denning in the 1970’s. Authors such as Gary Watt and Professor Birks propose that unregulated equity can become an instrument of abuse since a judge’s perception of what constitutes justice is as variable as the ‘Chancellor’s foot’.[82] This danger of ‘palm tree’ justice can be illustrated through Watt’s suggestion that equity ‘comes in sheep’s clothing, but it has the bite of a wolf’.[83] It is therefore true to maintain that Lord Eldon’s systematisation of equity is reflected in today’s society, but since then equity has developed in the sense that it has become clothed in precedent but nevertheless ‘natural justice still shows through’.[84] This is achieved through the ‘residual category of unconscionability’ where equity is now protected from the experimentation of ‘broad justice’ rule but still allows judges the flexibility to alternate between the already established principles and doctrines to which they can add, take away or simply expand them. This therefore means that today’s equity is not ‘fashionable’ equity: it effectively achieves an equilibrium between substantive justice demanded by society as well as adherence to precedent. It is wise to conclude with the idea that whenever one thinks of equity in its unprincipled and ad hoc nature one is mistaken by a historic misconception. It would be more accurate to consider today’s equity as principled equity but nevertheless the common law must not be seen as an obstruction to further developments of equity, instead the residual category of unconscionability is perfectly capable of expansion to accommodate developing customs and values of the society regarding their perception of conscience. This was illustrated by Lord Denning’s creation of a ‘new constructive trust’ with an undertone of illegality as it undermined the conveyancing law and was based upon no legal principle, therefore, today’s lesson is that innovation of precedent is perfectly capable and even encouraged but must be done so without undermining the general law. Equity ‘follows the law’ and is not here to undermine it and with that in mind it is important to take Lord Denning’s advice that ‘there remains a great deal that can yet be done by the judges’.[85]
Bibliography
Cases
Attorney-General v. Vigor (1803) 8 Ves. Jun. 255
AUstotel Pty Ltd v franklins Selfserve Pty Ltd (1989) 16 NSWLR
Bowen v. Whitmore (1693) 2 Freeman 193
Bromley v. Holland (1802) 7 Ves. Jun. 3
Cowcher v Cowcher [1972] 1 All ER 943
Davis v. Duke of Marlborough (1819) 2 Swans. 108
Earl of Oxford's Case (1615) 1 Ch Rep 1
Ex parte Thistlewood (1812) 19 Ves. Jun. 236
Eves v Eves [1975] 1 WLR 1338.
Ex parte Whitbread (1812) 19 Ves. Jun. 209
Gee v. Pritchard (1818) 2 Swanst. 402.
Grundth v. Great Boulder Pty. Gold Mines Ltd. (1937) 59 CLR 641
Hill v. Barclay 16 Ves Jun 402
Hospital Products Ltd. V. United States Surgical Corporation [1984] 58 ALJR 587
Hussey v. Palmer [1972] 1 WLR 1286, 1290.
Jessel, M.R., in ‘Re Hallett’s Estate’ (1879) L.R. 13 Ch.
Morice v. Bishop of Durham (1805) 11 Ves. Jun. 57
Princess of Wales v. Earl of Liverpool (1818) 1 Swans. 114
Ramsden v. Dyson (1866) LR 1 HL 129.
Sitwell v. Bernard (1801) 6 Ves. Jun. 520
Sloman v. Walter 28 (1783) 1 Bro CC 418
Wallis v. Smith (1882) 21 ChD 243.
Waltons Stores v. Maher105 [1988] 62 ALJR 110.
Webber v. Smith (1689) 2 Vern 102
Journal Articles
A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems
G.Watt, ‘Unconscionability in Property Law: A Fairy-tale Ending?’ in M. Dixon and G. Griffiths (eds),
Contemporary Perspectives on Property, Equity and Trusts Law (OUP, Oxford 2007)
Holdsworth, ‘The Relation of Common Law Equity to the Equity Administered by the Chancellor’ (1916) 26 Yale L.J.1.
H. Baker, An Introduction to English Legal History (4th ed. Butterworth, London 2002)
Martha . Nussbaum, ‘Equity and Mercy’(1993) 22 PHIL. & PUB. AFF. 83, 96
Radin, ‘A Juster Justice, A More Lawful Law’, in Max Radin & A.M. Kidd (eds), Legal Essays in Tribute To Orrin Kip McMurray (1935).
Roscoe Pound, ‘The Decadence of Equity’, (1905) 5 COLUM. L. REV. 26
Rossiter, C.J. & Stone, Margaret. ‘The Chancellor's New Shoe,’ (1988)11 University of New South Wales LJ 11.
Books
Aristotle, M. Ostwald (trs), Nichomachean Ethics, (Bobbs-Merrill, Indianapolis 1962)
A Denning, The Family Story (Buterworths, London 1981)
G Watt, Equity Stirring: The Story of Justice Beyond Law (Hart Publishing, Portland 2009)
H Maddock, A Treatise on the Principles and Practice of the High Court of Chancery in Two Volumes vol I (London 1814).
P.S. Atiyah, The Rise and Fall of Freedom of Contract (Claredon Press, Oxford 1979)
R.E. Megarry and P.V. Baker, Snell’s Principles of Equity, (26th edn. Sweet & Maxwell, London 1966)
W.D. Ross (ed), Aristotle: Nichomachean Ethics (Clarendon Press, Oxford 1908)
[1] (1615) 1 Ch Rep 1, 21 ER 485.
[2] Earl of Oxford’s Case (n 1) 6.
[3] [1996] AC 699, 705 (Lord Browne-Wilkinson).
[4] Westdeutsche (n 3), 705 (Lord Browne-Wilkinson).
[5] F.W. Maitland, A.H. Chaytor & W.J. Whittaker (ed), Equity: A Course of Lectures (Cambridge University Press, Cambridge 1969) 20.
[6] W.D. Ross (ed), Aristotle: Nichomachean Ethics (Clarendon Press, Oxford 1908) 28-30.
[7] (1818) 2 Swanst. 402.
[8] Gee (n 7).
[9]J.E. Martin, Hanbury and Martin: Modern Equity (18th edn, Sweet & Maxwell, London 2009) 14.
[10] (1804) 10 Ves. Jun. 3.
[11] Jackson v Petrie (n 10).
[12] (1812) 19 Ves. Jun. 255.
[13] Ex parte Whitbread (n 12).
[14] (1819) 2 Swans. 108.
[15] Duke of Marlborough (n 14).
[16] (1803) 8 Ves. Jun.
[17] Attorney-General v Vigor (n 16).
[18] (1812) 19 Ves. Jun. 1,
[19] (1801) 6 Ves. Jun. 499,
[20] (1801) 6 Ves. Jun. 499,
[21] Beverley McLachlin, writing extra-judicially, has remarked the ambiguity of the word ‘unconscionability’, which ‘arises continually in the study of equity’. On the one hand, it is a broad term describing the general concerns of equity; on the other, it is a term of art, referring to ‘a specific form of equitable relief’ (‘The Place of Equity and Equitable Doctrines in the Common Law World: A Canadian Perspective’, in D.W.M. Waters, ed., Equity, Fiduciaries and Trusts, Scarborough, 1993, 45).
[22] Pulteney v. Warren (1801) 6 Ves. Jun. 73
[23] Iggulden v. May (1804) 9 Ves. Jun. 323
[24] Baker v. Mellish (1805) 10 Ves. Jun. 544
[25] Morice v. Bishop of Durham (1805) 11 Ves.
[26] Morgan v. Shaw (1817) 2 Mer. 138
[27] Protheroe v. Forman (1819) 2 Swans. 227
[28] Underhill v. Horwood (1804) 10 Ves. Jun. 209
[29] (1813) 2 V. & B. 105, 35 E.R. 259 at 260.
[30] Jenkins v. Hiles (1802) 6 Ves. Jun. 646
[31] Cock v. St. Bartholomew’s Hospital, Chatham (1803) 7 Ves. Jun. 138
Hawkins v. Kelly (1803) 8 Ves. Jun. 308, 32 E.R. 373 at 373
[32] Jenkins v. Hiles, supra, note 79 at 1242.
[33] As had Lord Hardwicke before him: see, for example, Lord Falconberg v. Peirce (1754)
Amb. 210, 27 E.R. 140 at 140 and Carrington v. Holly (1755) Dickens 280 at 281.
[34]Evans v. Bicknell (1801) 6 Ves. Jun. 174
[35] Pemberton v. Pemberton (1805) 11 Ves. Jun. 50
[36] ‘The Decadence of Equity’, 5 Columbia Law Review (1905) 20.
[37] See B.F. Brown, ‘Equity in the Law of the United States of America’, in Ralph A.
Newman, ed., Equity in the World’s Legal Systems: A Comparative Study, Brussels, 1973,
205ff.
[38] Nichomachean Ethics, trans. M. Ostwald, Indianapolis, 1962, 142.
[39] Jackson v. Petrie (1804) 10 Ves. Jun. 164, 32 E.R. 807 at 807
[40] (1811) 18 Ves. Jun. 56
[41]Cholmendley v. Clinton (1815) 19 Ves. Jun. 261
[42] Vowles v. Young (1803) 9 Ves. Jun. 172
[43]Jenkins v. Milford (1820) 1 Jac. & W. 629
[44]Lord Courtney v. Godshall (1804) 9 Ves. Jun. 473
[45]Rowe v. Teed (1808) 15 Ves. Jun. 372
[46] Mackenzie v. Mackenzie (1809) 16 Ves. Jun. 372
[47]Princess of Wales v. Earl of Liverpool (1818) 1 Swans. 114
[48] Vancouver v. Bliss (1805) 11 Ves. Jun. 458,
[49] Ex parte Stephens (1805) 11 Ves. Jun. 24
[50] Burroughs v. Elton (1805) 11 Ves. Jun. 29
[51] Ex parte Thistlewood (1812) 19 Ves. Jun. 236
[52] Klinck, Dennis R., 'Lord Eldon on 'Equity'' (1999) The Journal of Legal History, 20: 3, 51-74.
[53] Caffrey v Darby [1775-1802] All ER, 507, 510.
[54] Woollan v. Hearn [1775–1802] All E.R. 587, 590.
[55] Rossiter, C.J. & Stone, Margaret. ‘The Chancellor's New Shoe,’ (1988)11 Univ. New South Wales LJ 11, 15.
[56] Roscoe Pound, ‘The Decadence of Equity’, 5 COLUM. L. REV. 25 (1905).
[57] Stephen N. Subrin, ‘THE EMPIRICAL CHALLENGE TO PROCEDURE BASED IN EQUITY: HOW CAN EQUITY PROCEDURE BE MADE MORE EQUITABLE?’ Equity and Contemporary Legal Developments, First International Conference on Equity 761 (Stephen Goldstein, ed., Hebrew University of Jerusalem, June 1990).
[58] Raineri v. Miles [1981] AC 1050.
[59] Roscoe Pound (n 22) 28.
[60] Campbell Discount Co Ltd v Bridge [1961] 1 QB 445, 459.
[61] [1981] 2 All ER 204.
[62] Western Fish (n 27) 210.
[63] Re Hallett’s Estate (1880) 13 Ch. D 696, 710.
[64] [1952] 2 QB 466.
[65] [1965] AC 1175.
[66] [1975] 1 WLR 1338, 1341.
[67] Eves v Eves (n 32).
[68] Hussey v Palmer [1972] 1 WLR 1286.
[69] Springette v Defoe [1992] 2 FLR 388, 393.
[70] [1972] 1 WLR 425.
[71] Cowcher (n 36) 430.
[72] [1996] AC 699.
[73] Westdeutsche (n 38) 705.
[74] Westdeutsche (n 38) 716.
[75] Stone (n 21) 24.
[76] Muchinski v Dodds (1985) 62 ALR 429, 436 (Deane J).
[77] Stone (n 21) 24.
[78] [19840 58 ALRJ 587, 596 (Gibbs CJ).
[79] G Watt, Equity Stirring: The Story of Justice Beyond Law (1st ed, Hart Publishing, Portland 2009) 76.
[80] Watt (n 45) 76-77.
[81] Stone (n 21) 27.
[82] Gee (n 7).
[83] Gary Watt, ‘Unconscionability in Property Law: A Fairy-tale Ending?’ in M. Dixon and G. Griffiths (eds),
Contemporary Perspectives on Property, Equity and Trusts Law (1st edn, OUP, Oxford 2007)
[84] Watt (n 45) 82.
[85] Alfred Denning, The Family Story (Buterworths, London 1981).
