Following on from (I) we again look at the remaining chosen maxims and their application within law. As before, there will be key citations to help explain their use (where possible), and hopefully these will assist when looking for clarification.
Delay defeats equity
Fettered through the confines of the Limitation Act 1980 and the estoppel doctrine of laches, this maxim underlines that when seeking legal remedy, it is imperative that the claimant moves to argue with haste, as the passage of time will ultimately work against any reasons to the contrary. That aside, there are particular beneficiary rights exempt from delay, and those include breach of fiduciary duty, undue influence or recession of contract; while s.36 of the 1980 Act refuses to prevent claims on grounds of acquiescence, as this in itself can stand as evidence of that restraint. An excellent case for the examination of this maxim is Erlanger v New Sombrero Phosphate Co, in which Lord Jackson cited the comments in Lindsay Petroleum Co v Hurd:
“The doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”
Equity will not allow a trust to fail for want of a trustee
As clearly explained within the title, this maxim states that in the event that a trust has been constructed in the absence of a trustee, or that through time those appointed have since passed, the courts will take the necessary steps to ensure the trust is honoured, and a suitable trustee will stand in receipt. This power is conferred to the courts under the Trustee Act 1925 and requires no reliance upon common law to succeed.
Equality is equity (aequalitus est quasi equitas)
Often applied to manage the distribution of assets between beneficiaries, this maxim will allow the court to distribute equal shares between any number of parties where no prior agreement has been found. While used primarily with trusts, this is also found in divorce proceedings, where evidence aside, the husband and wife cannot fully establish the exact proportions of the monies remaining after the fact. An example of this is Burrough v Philcox where Lord Chancellor Cottenham remarked:
“I think myself justified in giving effect to the intention, which appears to me to be sufficiently apparent upon the will, of giving the property to the nephews and nieces, and their children, subject to the selection and distribution of the survivor of the son and daughter; and that they all constitute the class to take all the property as to which no such selection and distribution has been made.”
Equity will not assist a volunteer
In its most simplest of forms, this maxim provides that equity will not, by virtue of their proximity, assist a party indirectly involved in a matter of grant, whether by marriage or by trust (as is most often applied). In the latter instance, a lack of consideration for the benefits of such a trust automatically renders the claimant void of support when seeking remedy, and further renders them incapable of instructing a trustee to the same end. A volunteer can however, sue for breach of duty or agreement where they are so associated, and can attain that those in trust are there for the benefit of the volunteer and hold only for their needs (where applicable).
Equity will not perfect an imperfect gift
The willingness to give freely of something must extend beyond words and take effect through action, or equity cannot enforce the gesture within the courts. This would apply to anything under common law, but is typically found in property and trust matters where a party alleged to have been conferred that of a physical form are left wanting, and so in search of remedy through the principle above. An excellent case example for this denial is Curtis v Pulbrook, in which a company director made efforts to pass on a number of shares to his daughter while in the process of liquidation, but who did so without formalising the transfer within the requirements required under company law. In concluding the error, it was remarked by Justice Briggs that:
“…without his assistance in making available the duly completed stock transfer forms, neither his wife nor his daughter could perfect the intended gifts without further assistance from Mr. Pulbrook…it follows that there was not an effective gift of Mr Pulbrook’s beneficial interest either in the 14 or in the 300 shares which he attempted to give respectively to his daughter and to his wife so that, in the result, there is nothing to prevent the charging order being made final in relation to all of them.”
As was explained in part one, there are many examples of equitable maxims, and time permitting, it would be useful to explore them in greater detail. However, for the immediate purpose these are what many might consider to be the more commonly used of the collection. Hopefully those shown here help demystify their use, and perhaps in time there will be some new cases to support those maxims currently left in description only.