Equity & Trusts
The question has been given to you at this point in order to enable you to plan and research.
Footnotes are included in the word count, but the bibliography is not.
Word Count is 1200
Please find the coursework question below:
‘What is Equity’?
Please listen to Alastair Hudson’s equity podcast number ‘0’ – entitled ‘what is equity?’
www.alastairhudson.com/podcasts/E&T Mixed Podcasts/0-Whatisequity.MP3
Then, using his podcast and materials :
Microsoft Word – Podcasts accompanying (alastairhudson.com)
Please write an essay answering the same question. Do NOT simply transcribe the podcast, this needs to be written as an academic essay using his podcast as your guide, but you may and should also use other academic materials you find through your own research/reading. Your essay should be written with references/citations and cases in footnotes [OSCOLA style].
Coursework instructions [see further details on MyLearning 3103]
A bibliography should be included at the end of the coursework. Cases must be cited correctly, but the full citation may be contained in footnotes. Word count must be recorded. You must fully attribute any judicial quotations or passages taken from articles or textbooks.
Structure: Follow a logical structure. Include an introduction. Provide a conclusion in which the law is applied when appropriate. You must cite cases and explain them if appropriate. Other than as just indicated, there is no specified structure.
Referencing: Provide a bibliography. Apart from the bibliography, referencing should only be in the footnotes and the footnotes must be used for referencing only, not for additional words.
Use a range of recommended casebooks and textbooks;
Use library databases to read relevant cases;
Research relevant journal articles using hard copy and/or academic internet sources
(a) All coursework must state the word count.
(b) The word count excludes the bibliography and all footnotes as long as they are used for reference purposes only.
(c) All work which exceeds the word limit, fails to state the word count or states the word count incorrectly will be subject to the penalties stated below.
(d) Coursework which fails to state the word count or states the word count incorrectly will be penalised by the deduction of 2%.
(e) Coursework which exceeds the word limit by more than 10% will be penalised by the deduction of 5% on a pro rata basis
In his podcast defining what equity comprises, Alastair Hudson explains that it is a collection of things. Hudson (0:56-0:58) defines equity as a philosophical idea dealing with fairness and many forms of justice, quoting Aristotle. Nonetheless, it is critical to see equity through lenses that go beyond justice. Laws, according to Hudson (1:12), are constructed with a universal in mind, with their essence applying to everyone. However, while laws are developed for everyone because of their universal characteristics, they are made by people, which implies they are not flawless. The formulated laws may not meet the circumstances of a certain individual in the administration of justice in a variety of circumstances. As a result, the question of what equity is is better answered by attempting to comprehend what role it plays or, more specifically, what it performs.
The role of equity in the courts and intellectual texts has been discussed. According to Aristotle, fairness is greater to justice since it is the legal rectification of legal justice. Hudson summarizes Aristotle’s argument by noting that while the law is universal, it does not apply in certain situations. In such cases, the objective of fairness is to close the gaps and give justice as the legislator would have if he had been present. Lord Ellesmere asserts unequivocally that the duty of equity is to soften and appease the law’s extremes. As a result, equity may be regarded as outside the scope of the law. Instead, in his traditional ruling, Lord Cowper stated that justice should be seen as a moral virtue. As a result, it is intended to mitigate and qualify the harshness of the law through universal truth.
As a result, equity can be viewed not only as a philosophical and universal truth, but also as a weapon. Equity, in the words of Lord Cowper, attempts to remedy the deficiencies of the law and aid the law in preventing probable evasions and delusions since it is conceivable at common law to have individuals move from the law in devious ways. As a result, while seeing equity as a tool, it is critical to remember that it is not intended to destroy or construct the law; rather, it is intended to aid the law. Hudson (3:30-3:38) describes a case in which a deceased person may have left a will for a secret child. In the case, he shows how the child might not be entitled to any inheritance under common law, despite the fact that that was the deceased’s will and wish. As a result, equity steps in to provide a remedy and help to the child by upholding the deceased’s desire and wishes.
As a result, as Hudson demonstrates, the job of equity is to intervene and bring about what is just and true. In other words, the role of equity should be seen as that which achieves morally acceptable final goals. However, it is also important to recognize that in English law, equity was established by the offices of the Chancellor to provide remedies where there was a breach of trust, wrongs, or oppressions. As a result, in English private law, common law and equity were distinct. The distinction between the two, however, has been nuanced and difficult to demonstrate. The earlier distinction, which existed prior to the introduction of the Judicature Act 1873, was also noticeable in the configuration of the courts, with the common law courts in Westminster Hall and the courts of equity in Lincoln’s Inn Hall. The Judicature Act, which is supposed to have fused common law with equity, is argued to be a fusion fallacy.
Thus, for a good comprehension of what equity comprises, the logical distinction between equity and common law must be highlighted. Thus, equity plays a critical role in preventing injustice by devising procedures to prevent unethical behavior for a specific objective. As a result, when answering the question of what equity is, one must emphasize the meaning and application of conscience and unconscionability. Watt defines conscionable as “something which one wishes for or strives to since it is something admirable.” However, it is also important to recognize that equity is frequently triggered in diverse situations because each case has a unique collection of characteristics. In Watt’s words, “equity intervenes where there is unconscionability.” As a result, as Hudson (5:23) points out, equity has a set of norms and processes. As a result, equity is more than just judicial discretion.
While the courts use equity in a variety of situations, which may give the impression that equity is a just discretion of the court, equity is also a type of procedural norm. However, it is also vital to note that, while equity has procedural standards, it rests on top of the law. The issue was reaffirmed and resolved in the Earl of Oxford’s Case, in which the court ruled that “when there is a disagreement between equity and common law, equity will prevail.” As a result, the picture demonstrates the folly in the union of common law and equity. The Judicature Act only merged the courts by establishing a Supreme Court. Nonetheless, it is important to emphasize that, according to the Judicature Act, when there is a dispute between equity and common law, equity will prevail.
As a result, while equity and common law work hand in hand, they do not truly mix and cannot be claimed to be one and the same thing. However, the two are comparable in that they both establish precedents. However, equity is special and distinct in that it develops maxims intended to enhance moral justice. As a result, equality is diverse, and it must be broad while yet paying attention to the individual circumstances of each instance. Thus, equity is the set of procedural procedures that assures it does what it is supposed to do. As a result, equity must be regarded as the pursuit of fairness on all sides of a dispute, because whoever comes to equity must do so with clean hands, as the ancient maxim requires. As a result, the remedies available at equity are more extensive than those available at common law. In conclusion, equity entails the possible remedies as a discretion of the courts to ensure justice and fairness prevail, and thus it is more than justice in the philosophical sense.
‘What is Equity?’ by Alastair Hudson http://www.alastairhudson.com/podcasts/E&T%20Mixed%20Podcasts/0-Whatisequity.MP3> accessed on November 1, 2022
 Boardman v. Philips 2 A.C. 46.
Bleak House by Charles Dickens (Bradbury & Evans 1853) .
Case of the Earl of Oxford (1615) 1 Ch Rep 1.
Equity Stirring: The Story of Justice Beyond the Law, Gary Watt (Hart Publishing 2009).
36 & 37 Vict c 66 Judicature Act 1873
Lady Dudley vs. Lord Dudley (1705) Prec Chapter 241.
Lord Evershed, ‘Reflections on the Fusion of Law and Equity After Seventy-Five Years’ (1954) LQR 70, 326.
Walsh v Lonsdale (1882) 21 Ch D 9.