Welcome and Introduction
Nailah Robinson
Tel: (246) 426-0844 (w), (246) 421-6960 (h)
Email: nprobins at hotmail.com
Web: www.nailahrobinson.com

Housekeeping
The tutorial format is that every week a student will present one of the tutorial questions. The rest of the group will provide feedback and then I will give my own suggestions. Students may work in groups if they like. By the end of the term, each student should have made at least one presentation. The presenter is expected to email their answer to the group, if not before, then after the class.

What is Equity?
The word ‘equitable’ may be used in the sense of ‘fair’ and ‘just’. Even in a criminal court, the judge may decide whether a punishment is equitable given in the circumstances of the case.

In this class, however, we focus on equitable remedies in civil matters. A civil matter is a non-criminal matter where the claimant/plaintiff sues the defendant, eg, for defamation, trespass, breach of contract, etc. The plaintiff asks the Court for a remedy. This remedy may be damages, ie, money. However, there may be cases where money is not enough. For example:
a)    if D sells P a spot of land and then tries to break the contract, P may tell the Court that money will not do as the spot of land is irreplaceable. The Court may then force D to complete the contract (on payment of the money). This is the remedy of specific performance.

b)    If P and D are neighbours and P sees that D is about to build a wall encroaching on P’s property, he may go to Court to stop D before he gets too far. He is asking the Court for the remedy of an injunction.

c)    If D holds the legal title to a spot of land that really belongs to P, P may ask the Court to find that D holds the land in trust for him. When he has been granted this declaration of trust, he has certain other remedies available, eg, he might ask for the legal title to be vested in him, he can trace trust monies, etc.

In historic times, the plaintiff could not go to the Law Court for an equitable remedy. Where D held P’s land, the Law Court would only recognize D as the legal owner, free to dispose of the land as he pleased. P would have to run to the Chancellor to have a trust declared. The Chancellor was the King’s Confessor, the Keeper of the King’s Conscience. He would make decisions depending on what was fair in the circumstances. He might find that it was unconscionable for D to sell the land and declare the trust.

In the common law, the Courts depend on statute and precedent. For example, if, in a defamation case, an award of damages is $100,000 in 2010, chances are that in similar circumstances it will be $100,000 in 2011. In equity, however, the remedy sometimes seemed to depend on whether the Chancellor was strict or lenient. There was no certainty. This is why there was a complaint that equity varied with the Chancellor’s foot. As time passed, and more case law came to be used in the Chancery, equity moved the other way and became too rigid. Eventually things settled down again, however. Now broad equitable principles are applied to reach fair results.

Eventually, the Courts were fused so that Law Court judges could give equitable remedies and plaintiffs no longer had to bring separate actions. Note, however, that an equitable remedy is still only available in certain cases.

Examples of how a trust might arise
In this class, we often talk about trusts. Under what circumstances might D hold the legal title to P’s land?

It might happen for example if:
1.    P was a minor when the land passed to him
2.    P bought the land in D’s name. This might be for convenience, as many couples do. If D is the child or wife of P, however, P will run into the problem that the court may presume the land was a gift. This is called the presumption of advancement.
3.    P might have been trying to defraud someone. This happened in a case we’ll study later: Tinsley v Milligan [1994] 1 AC 340. The plaintiff in this case was trying to collect welfare benefits which she would not have been eligible for as a landowner. She ran into the problem that he who comes to equity must come with clean hands. Eventually the Court decided that it would not be right for D to benefit either.

What if P gave D some money to buy her some product (eg, Juicy Jamaican Patties), and D was unable to do so (eg, shop closed). The Court will find that D holds the money on trust for P. This is called a resulting trust. D is obliged to return the money to P. A resulting trust arises where money is given for a purpose and that purpose cannot be fulfilled.

The issue of a resulting trust arose in the sad case of Re Gillingham Bus Disaster Fund [1958] Ch 300. In that case, a group of boys was killed in a road accident. The town raised money to help defray their funeral expenses. However, the insurance paid these costs. The Crown claimed the surplus money as bona vacantia. A court case later decided that the fund was not charitable and was not saved by the Charitable Trusts (Validation) Act 1954; that the cy-près doctrine could not be applied; that the fund's objects were too uncertain for it to be a valid trust; that the fund was not bona vacantia; and as a result that the funds should be returned to the donors under a resulting trust.

Analysis
Since this is the introductory tutorial, we will devote some time to the business of analyzing problem questions. There are many problem questions on the worksheet, and I want to be sure that all students have the skills to tackle them. To this end, I highly recommend the book “Getting to Maybe – How to Excel on Law School Exams” by Richard Michael Fischl and Jeremy Paul. I will hopefully put my copy into the library for students to look at. The information below is generally excerpted from the book.

Much of law is about being able to argue. For a person like me whose background is in Computer Science, this can be quite a culture shock. As the authors say, some persons come into law from high school or from other disciplines and expect that exams will be an “information dump” where you take the information from the book and dump it onto the paper. Others are good at spotting issues but then do not know what to do with them.

Others think that there should be rules. They sit in class, listening to the other students argue, wondering what the fuss is about and waiting for the punch line or conclusion. “If the sign says ‘No vehicles allowed in the park’ then there should be no vehicles allowed in the park. So what is the big deal?”

Still others find it difficult to understand how the same rule can lead to different results and start to think that the judge (or the professor) is a loose cannon, or crazy. At one point, I really believed that the law was dependent on what the judge had for breakfast! (Almost like how equity seemed to vary with the Chancellor’s foot.)

Remember that law is about arguing and ambiguities. There are almost always at least two ways of looking at the same scenario. If the law is straightforward, a lawyer will make an issue of the facts (a fork in the facts). If the facts are straightforward, a lawyer will make an issue out of the law (a fork in the law).

For example, A hires B to cater a party. Picture the beautifully laid out table at A’s house. However, A is not happy. She might say, “I have bought food from you, and food is a good. I am suing you under the Sale of Goods Act”. B might say, “Goods? Look at the tablecloth, the candles, the ambience! I have provided you with a service!” They are both looking at the same table, but pulling out different details which are relevant to their argument.

Sometimes you can think of this like being a spin doctor. For example, A has hired B to paint his picture in profile. B comes to the house and does a series of sketches and then A backs out of the deal. A says, “There is no picture on my wall so I have received nothing. I do not have to pay for mere preparatory work”. B says, “These sketches are an integral part of the portrait process. Clearly I have begun to work and deserve recompense!”

What if you have a statute? How do you determine what it means? Do you take a literal, commercial, or commonsense meaning? The meaning of a word depends on the “dictionary” you are using. For example, ‘dozen’ means ‘12’ to everyone, but to bakers it means ‘13’!

What about the word “writing”. Suppose a contract is only valid if it is in writing. A has emailed B. In seeking to set it aside, B may say, “This is not writing” while A may say, “In the 21st century, electronic writing is just the same as the old fashioned one.”

No Vehicles in the Park
We divide the class in half for this exercise. A sign in the UWIhill Elder Care Park reads ‘No vehicles allowed in the park’.

A: You represent a little old lady who wants her grandson to be able to ride his bike in the park when he visits her. You must argue that a bicycle is allowed in the park since it is not in the vehicle.

B: You represent another little old lady who does not want to see bicycles in the park because they are vehicles.

What reasons would you give on either side? Some of the reasons the students came up with:
A
1.    Define “vehicle” narrowly to exclude bicycles since a bike does not have a motor.
2.    Look at the purpose: the park is for recreation and a bike is a tool of recreation. Also a bike does not cause pollution like other vehicles and a bike is safe, unlike most other vehicles.
3.    What would the man in the Black Rock minibus say? That a bike is not a vehicle.

B
1.    Define “vehicle” broadly to include bicycles since a bike is a mode of transportation.
2.    Look at the purpose: the park is for elderly people. They cannot move out of the way quickly. A bike is not safe to have around.

“Purpose” and “Dictionary” are important analytical tools in any situation. Lord Denning once spent quite a few pages of a judgment deciding on the meaning of “warehouse” for the purpose of an act in the course of a dispute between the tax collectors and the owners. One party thought “warehouse tax” should apply, and the other didn’t.

What if you learn that last year, Judge Yogi Bear, in the highest Court in your land (CCJ, PC, whatever) has ruled that motorized wheelchairs are not allowed in the park. What would you do with that case if you were A? If you B?

Of course you do not know the rationale behind the decision (that is why you should read the case and not just the headnote!) However, it seems safe to say that Team B should run into the Court waving the case and hollering “If a motorized wheelchair is not allowed, then a bike should not be allowed either!” They should seek to apply or extend the wheelchair case to cover bikes.

Team A should try to distinguish the case or confine it to its facts. They might look at the rationale and try to show why it does not apply to bikes. Neither side, of course, can afford to just ignore the case. Remember that you are free to argue your side all the way back up to the highest Court in the land.

This example was one about a fork in the law – every knows what a bike is. But what if I told you that the grandson wanted to bring in a strange contraption: 4 wheels, 4 kids sitting on it, 2 kids on top of their heads holding umbrellas, and the whole thing being pulled by a string. This leads to a fork in the facts. Team A might look at certain details, eg, no motor, doesn’t move fast, to show that it is not a vehicle. Team B might look at other details, eg, wheels, to show that it is a vehicle. This is like the caterer and customer example from before – always look for the little details to support your side.