UNIT 1 – OVERVIEW

OF REMEDIES
PROVIDED
BY THE COURT
What is Remedy?
 Equity

That branch of the law which was

developed to correct, supplement
and amend the common law.
It softened and modified many of
the injustices inherent in common
law, and provided remedies where
at law they were either inadequate
or non-existent.
Historical Development

1. Mediaeval Period
This was the first period of equity which was
centered on the Lord Chancellor of England. He
was the head of the King’s Council which by 1300
became a great department of state. He received
all manner of petitions addressed to the King and
over time it became a practice to address
petitions to the Chancellor of England. He
received digest and dealt with petitions, for
example, that a writ be issued, that a remedy be
found. In essence, some of the petitions made it
clear that they appealed to conscience or that
they were no remedy at law.
 Historical Development

The jurisdiction of the Chancellor was two-fold: (a) common law

jurisdiction and (b) equitable jurisdiction.

(a) Common law

Cases concerning the King or grantee of the King, example, petitions
of right to recover property. Personal actions brought by or against
officers of the Court of Chancery.
 Historical Development
(b) Equitable Jurisdiction comprised
-The recognition, protection and development of trusts.
-The enforcement of contracts on principles unknown to the common law,
for example, sometimes recognizing contracts under seal.
-Interference with the rigidity of the law in cases where the presence of
fraud, forgery or duress would render the enforcement of strict legal
rights unconscionable.
-The giving of remedies unavailable at law, for example, injunction,
specific performance, among others.
-The development in the equitable action of Account of a much more
flexible and beneficial instrument than its common law counterpart.
-The giving of common law remedies where they theoretically existed at
law, but in practice was not available.
 Historical Development

2. Formative Period
This period covered the Tudors and Stuarts and had the following
distinct features:
•The separation between law and equity strengthened and
developed.
•The proliferation of lesser Chancery Courts commenced: the Court
of Requests, a sort of poor man’s Chancery flourished hugely; and
the Court of Star Chamber, a criminal outcrop of Chancery
developed.
 Historical Development

• All Chancellors during the time were ecclesiastics or at least not lawyers trained in the
common law. If ecclesiastics, they would have known something of the canon law and
something of civil law, but they only knew common law by accident.

• Henry VIII made a change in 1529 by appointing Sir Thomas More his Chancellor. From
that time the Lord Chancellor, was at times a lawyer. Chancery lawyers consciously
began examining the doctrinal basis on which Chancellor dispensed their remedies.
 Historical Development

Due to the mounting dispute between the Courts

of common law and of Chancery, the equity
lawyers constantly examined the foundation of
their doctrines. The common law courts then
saw their supremacy was at stake. They often
opined that any Court of Chancery
intermeddling with their freehold titles should
be prohibited [Heath v. Ridley 79 ER 286]. In
this case it was held that a Court of Equity
cannot intermeddle with matters of law; writ of
error lies upon its decrees.
 Historical Development

The common law courts even objected to the equity courts granting injunctions restraining a
plaintiff from executing an unconscionable judgment obtained at law. This led to the decision of
James I in Earl of Oxford’s case (1615) 1 Ch Rep 1. This case explained several maxims such as
quid pro quo that is, something for something and nullus recedat a Cancellaria sine remedio
that is no one should depart from a Court of Chancery without a remedy. The case also noted
that equity ought to join hand in hand moderating and restraining all extremities and hardships.
Similarly, the case noted that a right in law cannot die, no more can equity in Chancery die.
Additionally, the case mentioned that the statute was never made nor intended to restrain the
power of Chancery in matters of equity, but to restrain the Chancellor and the Judges of the
common law, only in matters merely determinable by law, in legal proceedings and not in
equitable, and they should be constant and certain in their own judgments and not play foot
and loose.
 Historical
Development
Equitable Remedies
 Equitable Remedy

• An equitable remedy, therefore, is a relief that a person can

obtain from a court to counter an infringement (or threatened
infringement) of his or her legal rights by a tort or breach of
contract. It does not involve any other legally permissible options
open to a person to counter such an infringement.
 Equitable Remedy

It also does not involve self-help remedies; see Burton v. Winters [1993] 3 ALL ER 847.
In this case the P commenced proceedings in trespass and nuisance against the Defendants, her
neighbours, for a mandatory injunction requiring them to pull down that part of their garage
which she alleged was built on her land. The judge granted a declaration that half that garage
wall encroached on the plaintiff’s property but refused to grant a mandatory injunction and
instead adjourned the claim for assessment of damages. The P then commenced building a wall
on the Defendant’s land in front the garage. The question arose as to whether the P was
entitled to exercise her common law right of abatement of nuisance created on her land by the
Defendant’s garage.
It was held that although there was a common law right of self redress for trespass by
encroachment, such a right was restricted to simple cases which did not justify the expense of
legal proceedings or urgent cases which required an immediate remedy. It was both late and an
inappropriate remedy as difficult questions of law existed.
 Classification of Remedies

• Judicial Remedies – where a party goes to court and obtain a judicial order including
damages, declaration, injunction, specific performance. A judicial remedy may be
either coercive or non coercive, that is, it may either be a court order to do or not
to do something, backed up by enforcement procedures or a court pronouncement
indicating or altering what the parties’ rights or duties are.
• “Self Help” Remedies – available without going to court, such as out of court
settlements, termination of a contract, ejectment of trespassers.
• Consensual Remedies – exist in areas of contract and tort. In a purely contractual
setting, there is an agreed damages clause where the parties agree that the
contract breaker will in case of a breach pay a certain sum as liquidated damages or
penalty. The parties ought to have made a genuine attempt to estimate the amount
of loss likely to flow from any breach.
 Legal and Equitable Remedies

The labeling between legal and equitable

remedies goes back to the historical labeling
indicating that the remedy was developed in
the common law courts or in the Court of
Chancery prior to the fusion of the courts by
the Judicature Act 1873-75.
 Legal and Equitable Remedies

• Legal remedies are mostly monetary. In the category of legal

remedies are damages. Damages are money paid by one party to
another; there are several types of damages.
• Common law remedies are subject to clear rules and available as
of right, however, there is still some discretion exercised in some,
eg. Principles limited compensatory damages.
• Common law remedies are awarded for an accrued wrong and not
an anticipated one.
 Legal and Equitable Remedies

• Equity was formed when monetary damages were inadequate to

deal with loss.
• Equitable remedies are discretionary and subject to discretionary
defences (laches, clean hands, hardship).
• In the category of equitable remedies are these three: specific
performance, which means a person is ordered to deliver a unique
thing (land or a unique personal property, such as a painting or an
antique car); injunction, a judicial order directing a person to stop
doing what he or she should not do (such as competing with a
former employer in violation of a noncompete agreement); and
restitution, which means putting the parties back into the position
they were in before the contract was made.
 Legal and Equitable Remedies

• Situtaions in which remedies would be granted

• To enforce a subsisting legal right;
• to prevent the doing of an unconscionable act;
• To enforce discretionaty remedy; and
• To declare existing rights between parties.