Tips for Assessment

Do not assume that particular topics will come up. Do not assume that the same topics
will come up again, and remember the same topic is unlikely to appear twice on the
same paper. If Q2 is about tracing, Q3 won’t be. Make sure therefore that you have
covered a significant portion of the syllabus in your revision and preparation work.
Some questions may span several areas.

Remember to do problem questions methodically – particularly eg with tracing

questions what you decide earlier on about what happens and its legal effects will
determine what happens later on. You can’t spend the same money twice! Equally if
you decided that part a) was invalid in a problem question about three certainties in
the context of a will (say for uncertainty of subject matter), it must fall part of the
residue in part c). Use IRAC
- What is the Issue? (eg it might be about whether certain words used indicate
an intention to create a trust? Certainty of Intention)
- What is the Rule? (eg set out cases on precatory words, such as Re Adams and
Kensington Vestry et al; words of hope, expectation etc do not create trusts)
- Application: (eg are the words “knowing for sure that Fred will do what is
right” precatory?)
- Conclusion: (depending on what you decide in step 3 is it a trust?)

Be clear what the question is about and tailor your answer to the question. Frequently
general essay questions are done much worse than more specific questions. General
questions are not an invitation to waffle, but you should attempt to pick out a number
of relevant areas from your study and structure an answer around how they relate to
the question. Take a hypothetical two part question:

a) What effect did the Judicature Act 1873-1875 have on the equitable jurisdiction?
AND
b) What was the purpose and effect of the Chancery Amendment Act 1858?

In order to answer a) you would have needed to ask what the position of the equitable
jurisdiction was in 1872, and what its position is now. What are the consequences of
that new position? Note that the technical term for the area covered by common law
or equity is the common law jurisdiction, or equitable (or Chancery) jurisdiction.

Prior to the Judicature Acts equity was administered in separate courts, the Court of
Chancery, from the common law and was thought of as having a separate root or
purpose to redress unfairnesses or unconscionability caused by the common law or by
people’s use of their common law rights. After the Acts the administration of the two
jurisdictions (equity and the common law) was fused into one court system and any
court could deal with any or all causes of action or defences whether legal or
equitable. This raises the question whether equity still had or has a separate existence
apart from the common law. If it does, we have merely procedural fusion and the
impact on equity is minimal – except that you no longer need in any case to start two
different actions in different courts. If it does not have a separate existence we have
substantive fusion. The consequence of substantive fusion is presumably that equity
does not any more look at whether the litigants are using their rights unconscionably.
There is no separate basis in unconscionability for the equitable jurisdiction.
Although it is a slightly different question you might like to think about what
unconscionable means. It crops up in different contexts – BCCI v Akindele in the
knowing receipt context, Pennington v Waine in the constitution of trusts
context. Do we know when the recipient of money/assets derived from a breach
of trust acts unconscionably so as to trigger liability under knowing receipt to the
beneficiary of the trust, or when it is unconscionable to deny that a transfer has
taken place so as to validate it in equity under Pennington? This is an exception
to Milroy v Lord and you should look back at your notes.

How would we decide whether we have substantive or procedural fusion? The

intention at the time was procedural fusion, but modern commentators, such as
Andrew Burrows and Sarah Worthington, have argued this is impossible. There are
inconsistencies between rules in equity and at common law that need removing. This
can only be done by changing the rules of one or the other so they fit together in a
single system. If there is only one system the basis of equity cannot any more be
unconscionability, or correcting of unconscionable behaviour. Against this the Act
(and Senior Courts Act 1981) provides for equity to prevail, which is impossible
unless equity has a separate existence

b) is a much more specific question. The Chancery Amendment Act (Lord Cairns’
Act) was a predecessor to the Judicature Acts. In the 1840s/50s litigants who wanted a
common law remedy, but also an equitable remedy for their common law cause of
action (under the concurrent jurisdiction) were forced into a ping pong in the sense
that they had to start an action in the Queen’s Bench (say) and then in Chancery. This
was expensive and time consuming. The Chancery Amendment Act allowed the
chancery to give damages – hitherto a common law remedy only – in addition to or in
lieu of (instead of) an injunction or specific performance. This meant that litigants no
longer had to dash between courts.

Do not forget the cases. Those who fail exams in law very rarely say anything about
any relevant case law or statutes. Putting in a discussion, or description of what was
decided, of one or two relevant cases can be the difference between passing and
failing. Do not assume that you can look at only some cases – not all constitution of
trusts questions for instance are based on Re Pryce. You were lectured on other areas
too, such as where the donor tries but fails to make the transfer (perhaps the donee
fails to register).

There are obvious things for some questions to concentrate on. A dishonest assistance
question is likely to require an assessment of whether the person is dishonest
(remember the big three cases, RBA v Tan, Twinsectra v Yardley and Eurotrust v
Barlow Clowes), or whether he assisted (did he make the breach of trust easier). A
knowing receipt question is likely to concentrate on whether the recipient of the
money really ought to have suspected something was up. Is there a fraudulent
transaction being conducted by someone else – are the promises they made to the
recipient-defendant completely mad? Concentrate your revision around the notes and
the powerpoint slides. That will help structure your revision.

Duncan