Insight | August 2017

Image: ‘No Trespassing’ by Arthur Wardle

For clarification there are two types of trespass, namely trespass to the person and trespass to land. As with anything requiring individual expansion we will begin by looking at trespass to the person.

Trespass to the person
Trespass to the person includes three torts ranging from (i) battery (ii) assault and (iii) false imprisonment, as first truly defined by Goff LJ in Collins v Warlock when he said:

“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.”

(i) Battery
While claiming accidental causes, the defendant in Williams v Humphrey was found liable for battery after pushing the victim into a swimming pool whereupon the claimant broke his ankle. Given that the intention to push the victim was present, no argument to the contrary could reasonably stand and damages were awarded.

(ii) Assault
In R v Ireland, a number of women subjected to continuous psychological damage through repeated abusive phone calls, were given the right to claim for assault even though they never met the defendant in person. When reaching summary judgment it was remarked by Hope LJ that:

“If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context.”

(iii) False Imprisonment
While reminiscent of physical imposition this tortious facet involves the restriction of liberty and movement of an individual. As may might expect there are cases where over extension of a prison sentence will suffice however mere isolation or deprivation of escape will also apply. It is important to note that while the victim may only fear these actions yet not necessarily fall subject to their physical consequences, psychological harm where proven, will suffice under a claim. Unlike the tort of negligence, trespass to the person relies upon intention, actual harm and obvious effect, and so victims are compensated not for unintentional damage, but that caused with deliberation.

Trespass to land
Similarly, trespass to land addresses deliberate actions by those subject to it, while primary focus is placed upon the protection and preservation of land or property. Harm is treated as one stemming from interference with a right to privacy and occupation and so, while possession of the land is imperative to a successful claim. There are, as with trespass to the person, four distinct categories of interference, namely (i) crossing a boundary (i) remaining on land (iii) exceeding permissions associated with land and (iv) placing objects upon land without express consent by the owner.

(i) Crossing boundaries
Undoubtedly the more common complaint is one of boundary violation, and while often focussed upon overgrown foliage or other such matters, there are also incidents where property intrudes into the airspace of land, such as in Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd where a contractor’s crane overswinging into a neighbouring property, thus prompting a supported claim for trespass through ‘airspace’.

(ii) Remaining on land
In Jones v Persons Unknown the freeholders of unregistered land were forced to serve eviction notices after a group of ‘fracking’ protestors set up residence and refused to leave. While claiming to be protecting the land on which they had become entrenched, the defendants were ultimately evicted under the award of a possession order on grounds of trespass. When outlying the justification for the order the judge remarked:

“[T]here is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back…he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings.”

(iii) Exceeding permissions (trespass ab initio)
When a party enters owned land under agreement but then proceeds to potentially outstay that welcome through unlawful or abusive actions, the owner is entitled to claim trespass from the point the visitor caused offence. In a case called The Six Carpenters, a number of carpenters entered an inn before ordering and paying for wine and bread; however things took a turn for the worse when after ordering more wine they refused to pay for it; thus instigating a unsuccessful claim for trespass damages by the landlord when the court held:

“[F]or not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio…”

(iv) Placing objects
In Arthur v Anker, the deliberate placement of an oil tanker and flower pots along a boundary wall caused tensions between neighbours until a claim for trespass led to an injunction to remove the objects, despite several months between their placement and the litigation. In surmising the judgment, Aldous J emphasised that:

“[T]here is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr. Stones to believe that he could maintain the tank on the wall situated as it is…He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.”

Specific Performance

Insight | May 2017

Specific Performance
Image: ‘The Contract’ by Fritz Wagner

Under the law of contract there are times when two parties can no longer honour their agreement and at which point one of them is left wanting. In some instances the award of monetary damages is enough to provide remedy, however there are also those where the loss is irreplaceable. On those occasions the court can legally impose a duty on those no longer willing (or seemingly able) to perform the task they originally contracted to undertake. While in certain cases the source of non-performance can also stem from frustration the criteria here is one of general breakdown of communication or even unresolvable conflict that while perhaps entirely warranted on the part of the negator, leaves the claimant with no other option than to sue.

Once agreed upon, an order for specific performance will comprise two elements (i) declaration of the order and (ii) provision of consequential detections to that effect. It also important to note that where a contractual breach is only anticipated the court can still require specific performance or provide injunctive measures, as was outlined by Lord Tucker in Hasham v Zenab:

“In equity all that is required is to show circumstances which will justify the intervention by a court of equity. The purchaser has an equitable interest in the land and could get an injunction to prevent the vendor disposing of the property.”

On this occasion the potential vendor immediately tore up a signed contract for sale of land after learning that the acreage was greater in the conveyance than as she had orally agreed. The language barrier between the two parties thus prevented clear understanding of what was at stake; and so left with a collapsed purchase the buyer sought specific performance prior to the completion date, upon which the court pondered its feasibility before dismissing the claim upon grounds of falsified evidence on both sides.

A positive example of specific performance can however be found in Rosesilver v Paton where a purchaser entered into a contract to acquire residential property, after which the vendor argued that the terms of the agreement relied on reimbursement of the part-purchase payments upon winning their two pending litigation cases, therefore the intention to sell was implied at the outset. Having examined the inconsistency of the vendor’s argument the judge dismissed additional claims of fiduciary breach and undue influence on a lack of cohesive evidence before ruling that the sale must now be completed. When reaching summary judgement Mann J concluded:

“I do not consider that Mr Paton has advanced a sufficiently clear and plausible case for saying that there was any form of binding (in any sense) arrangement, contemporaneously with the contract and its variation, which would restrict or restrain the enforcement of the contract.”

There are of course a number of factors that can hinder the ability to undertake a contract of engagement and these can range from disability and illness, personal conflict, mistrust based upon recent behaviour and costly supervision to enforce the performance. Likewise a failure to seek remedy for a protracted period can also work against a claimant as the negator could claim estoppel under the doctrine of laches. Ultimately though the choice to pursue specific performance will always run with an attached risk of further complications, as the inherent trust between contracting parties will have been irreversibly eroded once litigation commences; therefore financial damages should never be ruled out unless all other options have been exhausted.


Insight | May 2017

Image (left) ‘Self-Potrait with Pallette’ by Vincent Van Gogh (Right) Forgery

Finding effect through the inception of the Fraud Act 2006 there are three means by which fraud can occur; namely fraud by false representation, failure to disclose information and by abuse of position. Here we shall look at each one respectively and support with suitable cases where applicable.

Fraud by False Representation

S.2(1) of the Fraud Act clearly states that a person is guilty of fraud by false representation when it is proven that they did so to (i) cause gain for themselves or another party or (ii) cause or expose another person to loss or a risk of loss (this can be achieved in a number of ways and so oral and written methodology equally apply). This was demonstrated in R v Lambie in which a consumer continued to use her credit card despite exceeding her credit limit and after being asked by the bank to return it.

When carrying out a purchase in a Mothercare store the appellant in the appeal case was accused by the defedant of knowingly encouraging a transaction in the knowledge that the bank had no longer given the respondent authority to continue using the card. This argument was stringently dismissed while emphasis was placed squarely upon the intention of the respondent to knowingly defraud the store. An illustration of fraud by false representation was summed up by Lord Roskill who explained:

“…it is in my view clear that the representation arising from the presentation of a credit card has nothing to do with the respondent’s credit standing at the bank but is a representation of actual authority to make the contract with, in this case, Mothercare on the bank’s behalf that the bank will honour the voucher upon presentation.”

This ethos was also outlined in Rex v Sullivan where Humphreys J stressed:

“…the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence, if it was a false pretence.”

Fraud by Failure to Disclose Information

Subject to s.3 of the Fraud Act a person dishonestly failing to disclose information when (i) under a legal duty to so and (ii) by intention gains for themselves or another or causes or exposes another to a loss or risk of loss is thus guilty (where proven) of fraud. As this relates more to those in public body roles or parties to contract, the establishment of guilt falls to the judicial interpretation of civil law and statute as opposed to the collective opinion of a jury. An example of this R v Padellec in which a man accused of harbouring indecent images on his computer refused to disclose the encryption password as required under s.53 of the Regulation of Investigatory Powers Act 2000. After being summarily convicted the appellant appealed under plea in order to reduce his sentence at which point Singh J exclaimed:

“The whole point of requiring access is so that it can be seen what was in fact there. We express the hope that in a situation such as arose in this case, and in the context of an offence under the Regulation of Investigatory Powers Act (section 53), there will never again be a basis of plea accepted which is based upon keeping the contents secret and the defendant saying, to his advantage, what was or was not contained.”

Fraud by Abuse of Position

S.4(1) of the Fraud Act convicts those (again where proven) for gainful abuse of a position held to safeguard and preserve the finial interests of another. The gain can be both personal or on behalf of third party(s) while such profits must cause (or expose those assigned protection) loss or risk of loss. Given the nature of the breach it is typically applied to fiduciary or professional relationships where trust has been given under express conditions, however it could just as easily apply to family matters depending upon the relationship shared and the declarations made. As with fraud by failure to disclose information the judgements are typically free from jury persuasion and will benefit from equitable principles as much as civil laws for guidance.

An example of this was found in R v Conway (Catherine) in which a domestic care worker abused the trust placed in her by her client by obtaining and then keeping the victim’s debit card before defrauding her of £27,000 over a period of three years. Once caught and convicted the defendant then accused the victim’s family members of conspiring to the fraud before admitting full liability. When passing sentence Weir LJ illustrated the gravity of the abuse when he said:

“This was the calculated and systematic theft over years of a vulnerable lady’s life savings by the very person employed to assist and befriend her at a time in her life when she was at a low ebb and grateful for the help which this appellant cynically pretended to be giving her by buying her a few necessaries using her post office savings card.”


Insight | May 2017

Image: ‘Trust’ by Christine Lytwynczuk

Originating from the latin phrase ad opus, the purpose of a trust is to provide the safe containment of assets (whether those of property or money) on condition that they will be of benefit to another party or parties. There are many instances in which a trust can be created and it is the intention of this article that we have a look at the more common trusts used today, before explaining their application through suitable case law propositions.

Purpose Trusts

Subject to the same qualifying criteria as that of a will bequest, the terms of a valid trust require that three certainties be readily ascertainable:

(i) The intention of the settlor
(ii) The subject matter of the trust
(iii) The identity(s) of the beneficiary(s)

The inherent problem with purpose trusts is that they are by nature constructed so as to benefit an unlimited number of people although often under a charitable intention. An excellent example of a purpose trust is the one described in Re Denley where the use of recreational ground was exclusively reserved for the current and future employees of an aircraft manufacturer and that despite presupposition of its failure, the judge upheld its validity on grounds that an approximation of the staff was in the immediate sense, obtainable. This allowance was expressed by Goff J who remarked:

“…there may be a purpose or object trust, the carrying out of which would benefit an individual or individuals, where that benefit is so indirect or intangible or which is otherwise so framed as not to give those persons any locus standi to apply to the court to enforce the trust, in which case the beneficiary principle would, as it seems to me, apply to invalidate the trust, quite apart from any question of uncertainty or perpetuity. Such cases can be considered if and when they arise.The present is not, in my judgment, of that character…”

Resulting Trusts

Ironically resulting trusts are express trusts that have, by their lack of specificity, wound up benefiting the settlor despite the very wish to relinquish title or interest. As with the third element of a successful trust, where the identities of the beneficiaries are either remitted or withheld the principles of equity would defer the construction of the trust to that of the settlor’s gain. While in some instances the outcome causes little damage, there are equally those where a resulting trust inflicts financial loss as was seen in Vandervell v IRC. Appreciably there is rarely if ever any intention to create a resulting trust and so the instances where they do emerge rely upon clear conditions, as explained by Lord Millet in Air Jamaica v Charlton:

“Like a constructive trust, resulting trust arises by operation of law, though unlike a constructive trust it gives effect to intention. But it arises whether or not the transferor intended to retain a beneficial interest – he almost always does not – since it responds to the absence of any intention on his part to pass beneficial interest to the recipient. It may arise even where the transferor positively wished to be part with the beneficial interest…”

Charitable Trusts

One of the advantages of a charitable trust is that it enjoys exemption from the otherwise exactness of both beneficiary and subject, although in many cases the charity of choice is typically named so as to avoid confusion within the court, or a need to invoke the cy-pres doctrine. Another is the avoidance of taxation as charities are free from the burden of inheritance tax, capital gains tax and occupancy rates (where circumstances allow). As also outlined in s.1(1) of the Charities Act 2006 the trust beneficiaries must fall within the scope of legislation in order for the trust to succeed and as can be found under s.2(2) the possible forms such charities might take are reasonably extensive.

Constructive Trusts

Sharing a close relevance to the strictness of fiduciary duties, constructive trusts are a means of remedy where a trustee has immorally profited from another’s property through the dysfunction of their relationship. Where evidence is found to support wrongful gain, a constructive trust is created that serves to hold the assets on trust for the now slighted settlor. An example of this is Attorney-General of Hong Kong v Reid where Lord Templeman stressed that:

“As soon as the bribe was received it should have been paid or transferred instanter to the person who suffered from the breach of duty. Equity considers as done that which ought to have been done. As soon as the bribe was received, whether in cash or in kind, the false fiduciary held the bribe on a constructive trust for the person injured.”

Express Trusts

As with purpose trusts an express trust is the standard form of trust whereby the settlor makes a clear expression of his wish to create a trust, deliberately illustrates what form the trust takes (property or funds), who the beneficiaries are, takes the correct steps to transfer the property in accordance with statute and where necessary makes it known who the acting trustees will be. The reason for this is to facilitate court intervention in the event of contention, particularly where the settlor has since died and left instructions within their final will or codicil. Failure to demonstrate evidence of those key elements will result in a void trust and in death, eventual lapse into the residual estate of the deceased.

An example of the exactness required for an express trust is found in Milroy v Lord where despite having made verbal declarations as to his wish for his company shares to benefit his niece, his associate had failed to officiate the trust through the legal channels; resulting in the shares remaining on trust for himself (as would be the case in a purpose trust). This was elaborated by Lord Justice Turner who remarked:

“…in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.”

Cestuis Que Trusts

Cestui que is an abbreviated version of ‘cestui a que use le foeffment suit fait’ which means ‘the person for whose use the foeffment was made.’ Further simplified, ‘foeffment’ represents any grant of freehold property, therefore a cestui que trust would be those holding property upon trust for the benefit of another named individual who retains legal title; although any beneficial interest remains in the hands of the cestui que trust (or person assigned the interest). This translates that unlike other forms of trust the legal owner acts as a trustee, while the actual beneficiary serves as operator of the trust, much like a reversal of roles. The result of this is that should the trustee decide to convey the property the cestui que trust can sue for breach of duty where no permission has been granted and not profits enjoyed. This was explained by Austin Wakeman Scott in his Columbia Law Review article ‘The Nature of the Rights of the Cestui Que Trust’ (1917) who wrote:

“If a trustee should destroy the trust res, or should sell it to a purchaser without notice of the trust and dissipate the purchase money, the cestui que trust may maintain a suit in equity against the trustee for breach of trust, and recover a sum of money, either the value of the trust res, or the amount of profits which should have accrued if no breach had been committed.”

Fixed Trusts

These are typically used where multiple beneficiaries exist while the nature of the fixed trust is to state exact figures or quantities of benefit to each party so as to avoid inequitable profit by those in receipt or miscalculation by the appointed trustees. The criteria for this form of trust was established by Jenkins LJ in Inland Revenue Commissioners v Broadway Cottages Trust where having examined the specificity of the trust there was insufficient evidence to obtain certainty of the beneficiaries and the trust failed with the reasons given that:

“…the trust of the capital of the settled fund for all the beneficiaries living or existing at the termination of the appointed period, and if more than one in equal shares, must be void for uncertainty, inasmuch as there can be no division in equal shares amongst a class of persons unless all the members of the class are known.”

Secret Trusts

Undoubtedly designed to protect the identity and interest of the beneficiary(s) the settlor is able to draft and execute a secret trust that can be both observed during life and inserted into a will under the pretence that a named beneficiary will inherit absolutely, when in fact they will act as trustees for those with the intended benefit (similar arrangements can fall under intestacy provided prior agreement was arranged by the deceased). Similarly there are half-secret trusts that operate beyond the terms of a will but under the duties of a trustee, this translates that the dispositions of the trustee remain unknown, although there is no uncertainty as to where the trust property resides. The framework of secret trusts was outlined by Peter Gibson LJ in Kasperbauer v Griffith when he said:

“…the authorities make plain that what is needed is: (i) an intention by the testator to create a trust, satisfying the traditional requirements of three certainties (that is it say certain language in imperative form, certain subject matter and certain objects or beneficiaries); (ii) the communication of the trust to the legatees, and (iii) acceptance of the trust by the legatee, which acceptance can take the form of acquiescence…it is an essential element that the testator must intend to subject the legatee to an obligation in favour of the intended beneficiary. That will be evidenced by appropriately imperative, as distinct form precatory language.”

Discretionary Trusts

While operating much like a typical trust the discretionary trust allows the trustee(s) to regulate and thus self-determine the extent of the distribution to assigned beneficiaries. With two differing types, the exhaustive discretionary trust provides full and complete distribution of trust assets; whereas the non-exhaustive trust allows the trustee(s) to decide how much is awarded and to specify what, within the trust, is granted to the beneficiaries.

Statutory Trusts

Brought about through the disposition of land under co-ownership and the rules of intestacy, these trusts are designed to protect the interests of those in title. First introduced through s.34-36 of the Law of Property Act 1925 the intervention, or at least creation of such trusts, was also enforced through s.33 of the Law of Administration Act 1925 before consolidation of both acts came through the Trusts of Land and Appointment of Trustees Act 1996. In the former instance there is an automatic trust power to sell and retain under co-ownership and in the latter, a power to sell through personal representative where no will was executed.

Public Trusts

There is little to explain here other than that unlike a private trust a public trust is created by the settlor with the express intention of benefitting certain members (or sections) of the general public. This is often achieved through the use of a charitable trust as deemed valid through the requirements of rules required by the Charities Act shown above.

Bare (or Simple) Trusts

Perhaps the most basic or trusts the bare or ‘simple’ trust serves only to hold property or funds in favour of a beneficiary yet with no trustee duties attached. In this instance the trustee is replaced with the title of nominee until transfer is required.

Special Trusts

Unlike the previous trusts these are created with prerequisite trustee instructions albeit divided into two categories, namely ministerial and (as above) discretionary trusts. In the former those duties may include rent collection and administrative functions whereas the latter affords the trustee with powers to decide how best go about his or her role.

Quistclose Trusts

Running parallel to laws of contract, the quistclose trust was brought about in Barclays Bank v Quistclose Investments Ltd in which the lender took steps to clarify that the money loaned was on condition of use and held within the bank until the borrower chose to redeem the funds. When the borrower lapsed into liquidation the lender asserted property rights against the bank under the principle that the funds were held on trust and that the bank was now acting as a trustee; thus circumventing the rights of other creditors while holding the funds in safe reserve for the lender as acting settlor. This unique approach was supported by the House of Lords and explained well when Lord Wilberforce remarked:

“In the present case the intention to create a secondary trust for the benefit of the lender, to arise if the primary trust, to pay the dividend, could not be carried out, is clear and I can find no reason why the law should not give effect to it.”


Insight | April 2017

Image: ‘The Smokers’ Rebellion’ by George H.Boughton

Within law there are many types of legal injunctions across a number of different fields and their purpose is one of prevention or denial of an action or that of proximity to a party or place. In contract law there are mandatory (or negative) and prohibitory injunctions while in civil litigation there are interim (also found in criminal law), anti-suit and freezing injunctions. Within family law there are non-molestation and occupation injunctions (or orders) whereas under tort a claimant can apply for either partial or temporary injunctive relief as well as interim and super-injunctions (depending on the circumstances). In Equity and trust law there are also perpetual (or final) injunctions along with quia timet injunctions.

The aim of this article will be to look at all of the above while supporting each one with illustrative citations to help underpin their use, starting first with negative injunctions.

Mandatory injunctions

Often sought after the fact the purpose of this injunction is to force by application the party that has undertaken an act causing sufferance to the clamant, a liability to reverse the damage done through new action. There are however degrees of limitation to its use as under certain conditions, the extent of work required to restore the balance may outweigh the priority of the claimant seeking redress.

An example of this is Charrington v Simons & Co Ltd where after selling a portion of his land the buyer breached the restrictive covenant by resurfacing an adjoining road despite inherited limitations as to its operational height. When the applying the injunction the previous judge set conditions upon its use that allowed the respondent to effectively trespass on his land when restoring the road to its intended level; a decision that caused further angst toward the appellant and that was overturned to ironically set the injunction back into its proper effect. This was explained by Russell LJ who explained:

“…the judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff’s land which must lead to greatly increased harm to his business as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution.”

Prohibitory injunctions

While compelling in their purpose, prohibitory injunctions serve to prevent through inaction and are often used to control the events that either surround a contractual relationship or follow when the arrangement is dissolved. Typical scenarios range from former employees being forbidden to occupy similar positions within a particular radius or from using their skills to benefit another in a competing field through to sportsmen unable to play for specific rival teams for a determined period. The caveat within these restrictions is one of a right to live and so any prohibitory injunction granted must not deny those relevant the opportunity to work and live inclusive to the terms afforded others in a similar position.

An example of this is Jaggard v Sawyer in which damages in lieu were awarded to avoid the imposition of an injunction after completion of a second property upon land that contained restrictive covenants designed to deny such acts. While the defendants argued that attempts were made to explain their intentions and that due care was shown during the building process the appellants refused to accept damages and moved instead to enforce an injunction that by now was pointless and highly oppressive to the owners and potential tenants of the new house. This point was made clear by Sir Thomas Bingham MR who noted:

“It was suggested that an injunction restraining trespass on the plaintiffs roadway would not be oppressive since the occupiers of No. 5A could use the other half of the roadway outside the plaintiffs house, but this would seem to me unworkable in practice, a recipe for endless dispute and a remedy which would yield nothing of value to the plaintiff.”

Interim injunctions

Found in at least three areas of law these are often used to deny certain actions for a specific period, most often missed pre-trial in order to preserve order while the parties prepare themselves for the hearing without interruption. That said it is important that those seeking one are able to rely upon a substantive cause of action as was explained by Lord Diplock in The Siskina when he said:

“A right to obtain an [interim] injunction is not a case of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the [claimant] for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an [interim] injunction is merely ancillary and incidental to the pre-existing cause of action.”

It is also not uncommon for the High Courts to issue interim injunctions when criminal matters call and this position was made clear when in Attorney-General v Chaudry Lord Denning MR expounded:

“There are many statutes which provide penalties for breach of them; penalties which are enforceable by means of a fine or even imprisonment but this has never stood in the way of the High Court gaining an injunction. Many a time people have found it profitable to pay a fine and go on breaking the law. In all such cases the High Court has been ready to grant an injunction…”

Within tort there is legislative security offered through the Protection from Harassment Act 1997 which explains within s.3 that those seeking relief can apply for injunctions carrying criminal sanctions for non-compliance; as has been seen in celebrity and media related cases including AM v News Group Newspapers Ltd where an emergency interim injunction was ordered against a number of leading newspapers after their photographers descended upon the home of a landlord that inadvertently let one of his properties out to a suspected terrorist; an act that then attracted unwanted and stressful press attention around the claimant’s private residence. The grounds for this restriction were outlined by Tugendhat J who commented:

“Measures to ensure that respect is given to person’s home and family and family are required by ECHR Art 8 and Human Rights Act 1998 s.6. In so far as the order that I make prohibits disclosure of information, it is with a view to preventing interference with that right by intrusion or harassment, not preventing disclosure of information which is sensitive for any other reason.”

Freezing injunctions

Also known as a Mareva Injunction this order is issued in relation to assets involved in a civil claim. The injunction will typically apply only to the value argued and it prevents access by one party that might otherwise seek to remove or sell them for profit. While used to secure their presence during pre-trial and proceedings, the order cannot override the effects of liquidation and those seeking claim may find themselves denied of success when judgment is made. An example of the strict criteria surrounding freezing injunctions (particularly without notice) was expressed by Neuberger J in Thane Investments Ltd v Tomlinson (No1) where he remarked:

“… the duty of a person seeking an order, and in particular an order which can have as substantial an effect as a freezing order, in the absence of the Defendant against whom it is sought, is strict and important. An order against a person in his absence, particularly when it is a freezing order, which is a very serious infringement of his rights and liberties, can only be justified on appropriately clear and strong facts and risks. It should only be granted in circumstances which provide maximum protection for the person against whom the order is to be made. The courts have frequently emphasised the importance of compliance with the various requirements of the Rules relating to the obtaining of without notice orders.”

Non-Molestation injunctions

Designed to provide victim protection within intimate or blood-related relationships this injunction can be sought by the party involved, or under s.60 of the Family Law Act 1996 where a third party can seek the courts issue if those suffering are too afraid to request it. The purpose of this order is in the name inasmuch as denial of physical access when used to molest, harass or threaten the claimant to the point of legal intervention through verbal abuse and unwarranted use of that persons private property. The importance of this order was outlined by Wall J in G v F (Non-Molestation Order: Jurisdiction) where after the original court failed to grant protection to a single mother it was overturned and expeditiously supported through the words:

“Part IV of the Family Law Act 1996 is designed to provide swift and accessible protective remedies to persons of both sexes who are the victims of domestic violence, provided they fall within the criteria laid down by section 62. It would, I think, be most unfortunate if section 62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required.”

Occupation injunctions

Sometimes issued in conjunction with a non-molestation injunction, the occupation injunction confers power upon the court to prevent those in question from occupying a property. This can be used in both domestic abuse cases and also civil disputes surrounding property ownership or residency. As this injunction runs risk of serious restriction to individual rights the circumstances surrounding its use must be fully evaluated to avoid counter claims by the affected party. This strict yet delicate approach was underlined by Lady Justice Black in Dolan v Corby where she stressed:

“…it must be recognised that an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”

Super injunctions

Falling under the umbrella of interim injunctions a super injunction reveals greater yet highly focussed powers when preventing actions of third parties. Typically used to deny publication of potentially damaging material this order can be issued without notice and not only denies public access but anonymises the applicants identities, making it an effective tool for public figures and corporate entities alike. The validity of this injunction was well explained by The Master of the Rolls in JIH v News Group Newspapers Ltd where it was outlined:

“…the claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent. If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (i.e. what would normally be information of absolutely central significance in any story about the case who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed.”

Perpetual (or final) injunctions

Unlike interim injunctions these orders are issued at point of judgement and therefore remain in effect for an unlimited period. An example of this is Law Society v Kordowski in which a website designed to allow members of the public free expression of their disdain following direct experience with named solicitors was challenged upon numerous litigious grounds. This case was one of a number of individual matters and when moving to award final and indefinite removal of the site and future publications, Tugendhat J iterated that such injunctions were imperative when:

“The procedural remedy of representative proceedings, coupled with an injunction, may be the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts.”

Quia Timet injunctions

In much the same as mandatory injunctions serve to ‘undo’ the damage done, quia timet injunctions are anticipatory in that their purpose is the prevention of potential future harm that while proactive in design, relies upon compelling evidence to provoke court dispensation. The importance of overwhelming argument was made clear by Lord Dunedin in Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd when he outlined:

“Any restraint upon that at the instance of the other party must consist of an injunction of the quia timet order. But no one can obtain a quia timet order by merely saying ” Timeo ” ; he must aver and prove that what is going on is calculated to infringe his rights.”

In closing it must be noted that this is by no means an exhaustive list of injunctions; however it is hopefully detailed enough to provide a sound knowledge base when an understanding of their differences and relevance within case law is a priority. It may also pay to consider that in many instances there will always be degrees of overlap as nothing in life is ever straightforward and it is only through the investigative efforts of the judges that the attributable criteria can emerge.

Equitable Maxims (II)

Inisght | March 2017

Equitable Maxims (II)
Image: ‘Summer Patterns by Equity’ by Stephen Quiller

Following on from (I) we now move to where 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 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. It is also likely that over time there will be further additions as well as those selected for removal as the nature of law continues to evolve. Hopefully those shown here have helped demystify their use and perhaps in time there will be some useful cases to support those maxims currently left in description only.

Equitable Maxims (I)

Insight | March 2017

Equitable Maxims (I)
Image: ‘Balanced Law’ by Mike Savad

There are within the discipline of equity a number of maxims reverted to when settling many common law matters. The aim of this article is to present them in as exhaustive a manner as possible while including notable cases that explain their application. As the list is fairly extensive it will be presented here in two parts over two weeks so as to allow for time and digestible reading.

Equity follows the Law (Aequitas sequitur legem)

The nature of equity is one that supports rather than overrules the balance of justice, however it must also be stressed that where the moment calls, equity will go against those principles in pursuit of a fair outcome that common law fails to provide. A suitable case example for this is Stack v Dowden in which an unmarried couple shared a home for over twenty years while raising their children until the time came for separation. Upon their parting the father argued that as the two parties enjoyed joint legal title, beneficial interest was automatically deemed equal unless robustly proven otherwise. This slavery was echoed in the above maxim and until this case had been presented it remained common law that equal beneficial interest was assumed to mirror that of legal title; however the evidence presented by the respondent was overwhelming to the point that for the first time the percentages were divided heavily in favour of the mother. This reexamination of beneficial assumption was instigated by Baroness Hale of Richmond who urged:

“The issue as it has been framed before us is whether a conveyance into joint names indicates only that each party is intended to have some beneficial interest but says nothing about the nature and extent of that beneficial interest, or whether a conveyance into joint names establishes a prima facie case of joint and equal beneficial interests until the contrary is shown.”

Where the equities are equal, the law will prevail

Frequently tied to property dealings, the maxim above relates to two parties seeking title to a property without awareness of each others rights. An example of this might be a beneficiary to an estate who is unaware that a third party has since acquired legal title by means of a purchase (as sometime happens when wills are not updated nor properly constructed). The courts will view both potential owners as equal, however where the legal owner can prove ownership free of fraud the latter will succeed. This position was underlined in Pilcher v Rawlins where it was clarified by James LJ that:

“…such a purchaser’s plea of a purchase for valuable consideration without notice is an absolute, unqualified, unanswerable defence, and an unanswerable plea to the jurisdiction of this court. Such a purchaser, when he has once put in a plea, may be interrogated and tested to any extent as to the valuable consideration which he given in order to show bona fide or male fides of his purchase, and also the presence of the absence of notice; but when once he has gone through that ordeal, and has satisfied the terms of the plea of purchase for valuable consideration without notice, then…this Court has no jurisdiction whatever to do anything more then allow him to depart in possession of that legal estate.”

Equity looks to the substance rather than the form

This is a fairly descriptive maxim that serves to keep focus on legal proceedings in such a way that holds the principle of fairness above that of policy or written codes of conduct. This is not to say that where statute dictates a course of action equity will seek to ignore that, in fact under those terms the black letter of legislation will always win the day. What it does aim to do is look at the form of the subject matter rather than allow the intention to dissolve in favour of caveats that work against common law and obstruct a proper outcome. This was demonstrated through the words of Lord Romily Mr in Parkin v Thorold who remarked that an agreement between a vendor and purchaser did not rest upon the limitations of time and that when charges brought against the vendor for specific performance altered the essence of the contract, it was equity that referred the parties to the form of the arrangement:

“…time was originally not of essence of the contract…although express notice will make time of the essence of the contract, where a reasonable time is specified…the notice of the 21st October did not specify a reasonable time for this purpose.”

Equity will not permit statute to be used as a cloak for fraud

While perhaps limited in scope, the effects of this maxim can be appreciated within property law matters as it is a legal requirement under section 53(1)(b) of the Law of Property Act 1924 that any contracts for sale or occupancy must be written; and so in Bannister v Bannister the owner of a property conveyed a party rent free occupancy of the home for life after which they tried to evict them. It was then argued by the defendant that an oral contract existed which thus defeated the act of statute when the respondent went back on their promise.

Equity imputes an intention to fulfil an obligation

Relating to ambition and intention the aim here is to hold to account the statements or actions by a party that are later required to be enforced regardless of any reasonable changes in circumstance. When the court finds that no such fulfilment has occurred the obligation to do so will be levied through equity. An example of this is Lechmere v Lady Lechmere in which a Lord bound himself to purchase land for an agreed sum that would then pass through death to his wife. Upon his passing it was discovered that he had failed to uphold his requirement but had during the lifetime of their marriage, purchased other lands that now fell within the residue of his estate and required a successor in title other than his son. Through the application of this maxim the court allowed the transfer to his wife for the amount agreed and thus his obligations were deemed satisfied, as was expressed within the judgement which read:

“…wherever a thing is to be done either upon a condition, or within a time certain, yet if a recompence can be made which agrees in substance, though perhaps not in every formal circumstance, such a recompence shall be good, and shall go in satisfaction of the thing covenanted to be done.”

Equity regards as done that which ought to be done

There are times in law where the misdeeds of others wind up obscuring the natural order of events and so it is that the equitable maxim above is crucial to redressing the imbalance and putting matters where equity can reign. A fitting case example would be Attorney-General for Hong Kong v Reid where a senior crown prosecutor received bribes to obstruct the course of justice while employed in a manner that bestowed fiduciary duties. When it was discovered that those illegal payments had been invested in a number of properties it was agreed that those homes were held on trust by the appellant for the benefit of the crown; and while the rules of equity prevent a debtor to the injured party being a trustee for the monies received the Court of Appeal allowed that conflict to stand in order for the outcome to find form and for natural remedy to occur. This decision was supported by Lord Templeman who commented:

“It is unconscionable for a fiduciary to obtain and retain a benefit from a breach of duty. The provider of a bribe cannot recover it because he committed a criminal offence when he paid the bribe. The false fiduciary who received the bribe in breach of duty must pay and account for the bribe to the person to whom that duty was owed.”

Equity acts in personam

Because some matters involve effects belonging to individuals that may have since moved abroad, the principle that equity acts against the person provides domestic courts with an ability to extend their reach without interruption of foreign laws. This may come into play when a property owner or business person has entered into a contract that binds them within the United Kingdom but whose absence may permit avoidance of liability for remedy. There are of course limitations to this maxim and where the laws of the country occupied prevent such imposition the party accused may yet evade its grasp. This was explained by Lord Cottenham in ex parte Polland when he outlined:

“…contracts respecting lands in countries not within the jurisdiction of these courts…can only be enforced by proceedings in personam which courts of equity are constantly in the habit of doing; not thereby in any respect interfering with the lex loci res sitae.”

Equity will not suffer a wrong to be without a remedy (ubi jus ibi remediam)

Much like the founding principle of equity itself there are times when common law can inadvertently create unjust reward for those who deserve no such fortune; and so it is that when defective legal rulings are left wanting, the maxim ‘no misdeed should go unpunished’ can be applied to restore equality while in many respects mirroring the maxim ‘equity regards as done that which ought to be done’.

An example of this is Ashby v White in which a member of the public community was denied the right to vote by local policemen who wrongly acted on the damning advice of parish members claiming he was unfit to cast opinion. When taken to court the claimant was awarded damages after which the ruling was later overturned in favour of the policemen. This compelled the man to issue a writ of error against parliament on grounds that such a verdict allowed any member of a local authority to choose who could vote when such powers were conferred upon central government. When it was appreciated that a legal process had allowed this kind of miscarriage the initial judgment was upheld and damages paid while expressed:

“…as all parliamentary causes are to be determined in parliament, it was conceived that this matter was properly determinable in the House of Commons only; and that the courts of Westminster-Hall not being authorized by any act of parliament, had no cognisance of it.”

He who seeks equity must do equity

‘Do unto others as you would have them do to you’ might be another phrase better known to some and so again equity commands the same from those seeking remedy. It is after all the bedrock of law that fairness and equability must at all times remain in view should the rule of law justify its own existence; so when one party brings action against another it must act accordingly should it wish those accused to do the same. An excellent example of this is Chappell v Times Newspapers where Megarry J explained:

“If the plaintiff asks for an injunction to restrain a breach of contract to which he is a party, and he is seeking to uphold that contract in all its parts, he is, in relation to that contract, ready to do equity. If on the other hand he seeks the injunction but in the same breath is constrained to say that he is ready and willing himself to commit grave breaches of the contract…then it seems to me that the plaintiff cannot very well contend that in relation to that contract he is ready to do equity.”

He who comes to equity must come with clean hands

Once again we look to integrity and depth of character when assessing claims of inequitable conduct, except those claiming must themselves prove their argument does not rest upon misdeeds of their own within the parameters of the matter. An example of this is Barrett v Barrett where two brothers worked together to avoid the loss of a property during business liquidation. When the party losing their business asks the other to purchase the home (held by the assigned trustee) before refurbishing it and selling it for a substantial profit, the buyer later refuses to pass the sale proceeds back to his sibling. The brother retaliates by taking action against him but unfortunately during the hearing it emerges that the former owner acted in collusion so as to avoid surrendering the property as payment to his creditors, therefore his request for equitable remedy was built upon deception and avoidance of duties owed. This lapse of moral fibre was explained by Richards J who noted:

“He has in effect pleaded the unlawful purpose in paragraph 15(1)(a) of his particulars of claim : the purpose of purchasing the property in the name of John was “to avoid its being repossessed by the Trustee in Bankruptcy”. Without that purpose, the agreement or arrangement has no rational explanation. Thomas needs to allege and prove it in order to establish the agreement, but in doing so he relies on his own illegal purpose and thereby renders his interest unenforceable.”

In closing this last case wraps up part one of this final March insight article and next week the remaining maxims will be available for reading (unless more are discovered in which case there may well be a part three).