8 Key Topics for Revision • • • • • • • • Maxims Injunctions, particularly Interlocutory Quia Timet Injunctions and Anton Piller Orders Rescission Secret Trusts Charitable Trusts Resulting Trusts Trusteeship Tracing
1. MAXIMS This topic is usually examined as one part of a three part question, where candidates have to attempt two parts. It has always been a straightforward essay style question. In some years, the Examiner asked about their contemporary relevance, thereby catching out students who had rote learned mini essays which were short on modern caselaw. Therefore, you must be able to write about at least four maxims, you must have caselaw which highlights their contemporary relevance, and you will probably have no more than 17.5 minutes to do so. Important Maxims & Caselaw: Equity Regards as Done that Which Ought to be Done • Attorney General for Hong Kong v Reid (1994) • Davis v Richards and Wallington Industries Ltd (1990) • Shanahan v Redmond (1994) Equity will not Suffer a Wrong to be Without a Remedy • AG v Rathmines & Pembroke Joint Hospital Board (1904) • Re Diplock (1948) • Caselaw concerning all important equitable remedies will illustrate this maxim in action
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Equity acts ‘‘in personam’’ • Re Diplock(1948) • Agip (Africa) v Jackson) (1990) He Who Seeks Equity Must Do Equity • Chappell v Times Newspapers Ltd (1975) • Cheese v Thomas (1994) He Who Comes to Equity Must Come With Clean Hands • Smelter Corporation v O’Driscoll (1977) • Fanning v University College Cork (2002) • Tinsley v Milligan (1994) • Kavanagh v. Caulfield (2002) • Curust Financial Services Ltd. v. Loewe-Lack-Werk Loewe GmbH & Co. KG (1993) • National Irish Bank v RTE (1998) Delay Defeats Equity • JH v. WJH (1979) • McGrath v Stewart (2008)
Equity Follows the Law, But Will Not Permit a Statute to be Used as an Instrument of Fraud • Graf v Hope Building Corporation (1930). • Rochefoucauld v Boustead (1897) • McCormick v Grogan (1869) Equity is Equality • Burgess v Rawnsley (1975) • EB v SS (1988)
2. INJUNCTIONS This key equitable remedy is almost always examined. On the last occasion, the Examiner focused on interlocutory injunctions within the context of defamation proceedings and Mareva injunctions. Students who had not studied Quinlivan v. O’Dea (2009) in detail would struggle to achieve high marks in Part (a). Nolan v. Emo Oil (2009) has significantly altered the landscape of interlocutory injunctions in an employment context. Interlocutory quia timet injuntions and Anton Piller Orders are the ones most likely to be examined in October 2011. A good overall knowledge of Mandatory Injunctions is also advisable. Interlocutory Quia Timet Injunctions The Quia Timet injunction may be granted if: 2 ©Philip Burke, City Colleges
(i) An injury to the plaintiff ’s rights is anticipated or threatened, ie, it has not yet occurred, or (ii) where an injury to the plaintiff ’s rights has already occurred, and the plaintiff fears its recurrence. The principles governing the grant of a quia timet injunction appear to be the same as those governing the grant of non-quia timet injunctions. Perpetual Quia Timet Injunctions – The Varying Approaches
Attorney-General v Manchester Corporation (1893), Chitty J remarked, ‘‘[the plaintiff] must show a strong case of probability that the apprehended mischief will, in fact, arise,’’ in order to establish an entitlement to a perpetual quia timet injunction. Attorney-General (Boswell) v Rathmines and Pembroke Joint Hospital Board (1904), relief was refused on the basis that no real danger had been proved. In a frequently-quoted passage Fitzgibbon LJ said, ‘‘[t]o sustain the injunction, the law requires proof by the plaintiff of a well-founded apprehension of injury -proof of actual and real danger - a strong probability, almost amounting to a moral certainty, that if the Hospital be established, it will be an actionable...