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œIn one of his many seminal essays on equity, Sir Anthony Mason argues that it is characteristic of the development of equitable doctrine that what start their life in equity as unspecific references to the demands of conscience mature into more determinate rules and principles as they are reflected on, refined and applied by judges. On this view judges, by repeatedly evaluating the facts of particular cases within a certain class in light of the demands of conscience, may over time come to a clearer understanding of those demands that in turn renders them more determinate. Arguably, this trend is discernible in the recent treatment of incomplete gifts in English equity Professor Matthew Harding, (2016) Equity and the Rule of Law, 132(Apr) LQR 278-302. In the form of a short journal article, please critically discuss this statement.

Body

Equity is a common translation of Aristotle’s Nichomachaen Ethics. Hedlund (2015) defines equity as a reflection of law where it not applicable due to its general nature. To make it simple, as the terms of law are general and a particular case may arises which has a different situation to what have been covered under law and the rule of the legislature is not adequate to provide justice to the parties and if applied would result in a erroneous decision because of its generality, and where the legislature was aware of the situation he would have rectified the law, equity intervenes.  The purpose of the paper is to critically analyze the argument provided by Sir Anthony Mason that “it is characteristic of the development of equitable doctrine that what start their life in equity as unspecific references to the demands of conscience mature into more determinate rules and principles as they are reflected on, refined and applied by judge.  On this view judges, by repeatedly evaluating the facts of particular cases within a certain class in light of the demands of conscience, may over time come to a clearer understanding of those demands that in turn render them more determinate” in the light of the judgment provided by the court in the case of Pennington v Waine [2002] EWCA Civ 227.

The case of Pennington v Waine to some extent clarifies the law in relation to the fact that what is the minimum necessity which a donor must observe for the purpose of successfully completing a gift of shares. The facts of the case are vastly important to analyze the issue of the paper as the facts are such that where general law is applied it would have provided an erroneous decision as ruled by the court. In this case Mrs Ada who was the transferor of the gift owned 1500 shares in Crampton Bros Ltd. The company was in custody of her share certificates. The transferor told Mr Pennington (working as an auditor for the company) that she wants to transfer 400 of her shares to her nephew Harold. The transferor duly completed all forms which were required for the process of transfer and provided them to Mr Pennington while ordering him to complete the work of registration. However Mr Pennington kept the forms in a file of the company and did not give effect to the process of registration which would have completed the process of transfer. It was also indicated by Mrs Ada that she wanted Harold to become a director of the company. According to the constitution of the company a director has to hold at least one share in the company to be the directors and where Harold would not have had shares he could not be the director of the company. Mr Pennington told Harold to sign the consent form for a director and comply with rest of the formalities. Mr Pennington also informed Harold that an arrangement has been made by Mrs Ada to transfer 400 shares to him in the company. The form was signed by Harold and then counter signed by Mrs Ada. The parties did not take any further action before the death of Mrs Ada. Ada before dying made a will to transfer 620 shares more to Harold. She died after such events.

The question before the court was simple which had arose many times before the court in different cases. The court had to determine whether an effective equitable assignment of 400 shares to Harold took place before the death of Ada.  In addition the court had to determine that was the assignment completed by the execution of transfer form or delivering it to Mr Pennington.

According to the precedent rule provided in the case of Re Rose [1952] EWCA Civ 4 the transferor had to ensure that all possible steps in relation to the gift have been completed by him in order to give effect to the transfer. Unless all steps have been taken the equitable title would not transfer to the transferee.  In this case it was certain that Mrs Ada could have taken more steps to ensure that the shares had been properly transferred to Harold. In this context she could have made an application to the company to enter the tranferee’s name in its registers as it has been provided by section 183 (4) of Companies Act 1985. According to the section where shares are to be transferred to a person, the name of such person has to be entered in the register of member in the same way as the application has been made by the transferee.

According to the theory of equity, the concept would only intervene in situation where the donor has done everything in their hands towards the perfection of the transfer. However as argued by Bader  (2014) the concept cannot be true in a literal sense as the opposition would be provided with an unfair advantage. This is because there would be always something identifiable which the transferor could have done more towards perfecting the gift. In the given situation it can be clearly identified that Mr Ada and Harold believed that there was no further action required by them in order to complete the transfer of shares. They completed and executed all forms required for the transfer. Where no authority would have been applied in the case a reasonable person would have hold that the interests in the shares have been transferred to Harold. The forms which have been executed by Ada were correct, which has a prima faice effect of transferring the shares to Harold and gave such forms to Mr Pennington. She apparently had no knowledge that she needs to take any further step in relation to the transfer of shares. In addition after the execution of the form she did not have any right to withdraw the transfer. In addition her will suggests that the 400 shares were intended to be transferred to Harold as she through her will provided him with 620 shares which along with the 400 shares were enough to provide Harold 51% shares in the company.

According to the argument provided by Klinck (2016) the concept of equitable doctrine originates from equity and seeks whether there is fairness and morality involved in the case and such demand of morality turns into enhanced determinate rules which are used by the judges in cases. The judges evaluate the facts of the case under this point of view in relation to certain principles which makes such principles more determinate. In the given case the argument provided by Sir Anthony Mason appears to be true. This is because the court of appeal held the case in favor of Harold citing that the transfer of share has been duly executed by Mrs. Ada.  it had been argued by Birks that “discretionary remedialism” is an outrage against the principles of predictability and certainty. To the contrary it has been stated by Olsthoorn (2013) that a judicial decision is not always an inevitable result of applying established principles of law. Through the process of discretion the judges are able to address the legal issue of the case upon analyzing its facts in a better way. However, Hudson (2016) argues that judicial discretion provides the judges a chance of implementing a political platform.  It has been stated by Schauer in his theory of Formalism that if a specific injustice sometimes results out the application of established legal principles, the general rule cannot be changed in order to suit a particular case even if they result in moral disgrace or injustice. There is a maxim which states that “Equity acts in personam” through in personam or personal orders which can be enforced due to a coercive contempt. For instance the judges can fine or jail a stubborn or recalcitrant defendant until a particular verdict is obeyed by them. The principles of conscience are taken over by coercion. As stated by Hudson (2014) “Equity Is Soft and Chewy on the Outside, But Hard and Crunchy on the Inside.” The tem justice is a concept which is very appealing. However according to Liu (2016) justice is an unfocused, diffused and amorphous contempt.  Law can be defined as a system of rules which is applied by the judges in a general manner to similar disputes.  Tan (2017) argued that where there is too much discretion it leads to unequal law or no law at all. A judge has the power to decide that whether an equitable remedy should be provided to the parties or not and they can disallow a person from such remedy if they have violated the conscience of the judges although the principles of positive law were not violated.  

Heckman (2017) states that one of the most controversial and interesting developments in modern jurisprudence on equity is the enhanced use of conscience to restrain selfish behavior among parties to the case. There is a historic link between conscience and equity. In the case of Pennington v Waine it was clear that the judges had used their discretion to provide effect to the judgment. It was clear that there was profound evidence which stated Mrs. Ada could have done more in relation to confirming the transfer of shares. It was expressly mentioned in legislations what steps were to be taken in order to complete the transfer. In addition it was provided by the judges through the case of Re Rose that the principles of equity would only intervene where the donor had taken every step in relation to the registration.  The judges in the case still went against the general principles of law and applied their discretion in order to rule in favor of the appellant.  In the given situation it is clear that the judges did not give any relevance to the existing law over their own understanding. They also stated that were there was a lack of authority they would have ruled in favor of Harold. However the situation was hypothetical and in practicality the judges were under the obligation of abiding by the principles of law when deciding cases. According to the principles of the theory of flexibility such decision can be deemed as appropriate as the judges attempted to give effect to a situation where the application of general law could not provide appropriate results. On the other hand the decision of the judges in the case was against the through which asks not to change the principles of law to apply in a specific case even if it results in a moral in justice. The concept is widely used in relation to contract law where legal provisions are provided much more significance than the principles of equality. In cases of contract law even if the parties suffer significant damages the court instead of analyzing the fairness in deal analyzes the legal elements to come to a conclusion.

Conclusions:

From the above discussion it can be concluded that Sir Anthony Mason was correct in his argument. The paper does not determine whether the approach of the judges is appropriate or not as the question is subjected to a long debate. Judges in the English legal system do evaluate the facts of particular cases within a certain class in light of the demands of conscience which makes them see such demand as a determinant factor in the case. This was clear from the decision provided by the court of appeal in the case of Pennington v Waine. The judges did not taken into account the principles of law as they thought they would not provide an appropriate decision in relation to the case. The judges started the determination of equitable doctrine on the principles of equity however the unspecific need of conscience lead the judges in formulating determinate rules which makes them analyze the cases based on such rules.

Bader, William D. "Saint Thomas More: Equity and the Common Law Method." Duq. L. Rev. 52 (2014): 433.

Barnett, Randy E. The structure of liberty: Justice and the rule of law. OUP Oxford, 2014.

Cheesman, N., 2015. Opposing the Rule of Law. Cambridge University Press.

Heckman, Gerald. "Developments in Remedial Discretion on Judicial Review: Prematurity and Adequate Alternative Remedies." Canadian Journal of Administrative Law & Practice 30.1 (2017): 1.

Hedlund, Richard. "The Theological Foundations of Equity’s Conscience." Oxford Journal of Law and Religion 4.1 (2015): 119-140.

Hudson, Alastair. "Conscience as the Organising Concept of Equity." Can. J. Comp. & Contemp. L. 2 (2016): 261.

Hudson, Alastair. Great Debates in Equity and Trusts. Palgrave Macmillan, 2014.

Klinck, Dennis R. Conscience, equity and the Court of Chancery in early modern England. Routledge, 2016.

Leckey, Robert. "The harms of remedial discretion." International Journal of Constitutional Law 14.3 (2016): 584-607.

Liu, Guoqing. "Trust without Equity: the Commercial Nature of Chinese Trust Law." Trusts & Trustees 22.10 (2016): 1118-1133.

Mason, Anthony. "Discretionary trusts and their infirmities." Trusts & Trustees 20.10 (2014): 1039-1054.

Olsthoorn, Johan. "Hobbes's Account of Distributive Justice as Equity." British Journal for the History of Philosophy 21.1 (2013): 13-33.

Professor Matthew Harding, (2016) Equity and the Rule of Law, 132(Apr) LQR 278-302

Re Rose [1952] EWCA Civ 4

Shane, Peter M. "The rule of law and the inevitability of discretion." Harv. JL & Pub. Pol'y 36 (2013): 21.

Tan, Yock Lin. "Making and Remaking Equity and Trusts in the Law School." Sing. J. Legal Stud. (2017): 270

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