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1 An Introduction to Equity convenient to do so—but the equitable origin of the order continues to explain some of its significant features. For example, this equitable jurisdiction can be engaged only where there is an inadequacy in the remedies available at Common Law; Equity here is subor dinate to the Common Law. Compensatory damages will be inadequate if no damages are available at Common Law for the infringement of the particular wrong; if the dam ages would be nominal or small; if the loss would be difficult to quantify; or if the damages would compensate only for past loss and not for loss that might arise in the future. Damages would also be an inadequate remedy if the defendant was unable to afford to pay them. The principle that damages must be inadequate before an equitable remedy will be granted was considered by the Court of Appeal in AB v CD . 97 In that case, the claimant sought an equitable order to require the defendant to honour an agreement between them. The agreement contained a clause which limited the damages which would be available for breach of contract to below what might have been available under the gen eral law. It was held that, because of the agreed clause, damages would be an inadequate remedy for breach of contract and so the order was made. At first sight this conclusion seems odd, since it appears to undermine the bargain agreed by the parties. But the court emphasized the importance of distinguishing between primary and secondary obliga tions. The agreed damages clause provided for damages as a secondary obligation follow ing breach, whereas the equitable injunction operated to enforce the primary obligation to perform the contract and sought to avoid the claimant needing to have recourse to the agreed damages clause. It followed that, if the agreed damages clause provided for less damages than would otherwise have been available for breach, damages could be consid ered to be an inadequate remedy for breach, enabling the injunction to be awarded. The creative function of Equity is especially well illustrated by the freezing order, which was created in the 1970s to deal with the problem of a defendant who seeks to hide their assets or to take them out of the jurisdiction to prevent the claimant from enforcing a judgment for damages against the defendant. To avoid this problem, Equity created a new form of injunction to freeze some or all of the defendant’s assets to prevent them from being removed from the jurisdiction or dissipated and so ensure that any judgment could be enforced against the defendant. 98 For example, this freezing injunction might be used to prevent the defendant from gaining access to money that had been credited to their bank account. The jurisdiction to grant such an injunction is now recognized by statute. 99 The injunction has proved to be of real significance to international commercial litigation in the English courts. It was described by Lord Denning extra-judicially as ‘the greatest piece of judicial law reform in my time’. 100 Another significant application of the equitable jurisdiction which has been used to support domestic and international litigation is the search order, formerly known as the Anton Piller order after one of the first cases to recognize the jurisdiction to grant an order to permit the claimant to search premises and to seize property so as to assist the claimant in establishing a claim against the defendant. 101 That case illustrates the potential signifi cance of this exercise of the equitable jurisdiction. In Anton Pillar KG v Manufacturing Process Ltd , 102 the claimant claimed that the defendant had given confidential informa tion to manufacturers that was damaging to the claimant’s business. The Court of Appeal 97 [2014] EWCA Civ 229, [2015] 1 WLR 771. 98 The first case to recognize this injunction was Nippon Yusen Kaisha v Karageogis [1975] 1 WLR 1093. 99 The Senior Courts Act 1981, s. 37(3). See also the Civil Procedure Rules 1998, r. 25.1(f). 100 Denning, The Due Process of Law (London: Butterworths, 1980), 134. 101 The very first reported case to make such an order was EMI Ltd v Pandit [1975] 1 WLR 302 (Templeman J). 102 [1976] Ch 55. © Oxford University Press

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