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1.2 What is Equity? 5 predictability? The reality is that, over the years, Equity became much more rule-based and principled, with identifiable doctrines being recognized. This was largely because the Equity jurisdiction was transferred from the Lord Chancellor to judges, whose decisions had value as precedent for future decisions so that, increasingly, like cases could be treated in the same way. Even today, Equity is characterized by many judges and commentators as being flexible and seeking to secure the just and fair result. 6 Modern Equity is, however, founded on a framework of principles which purport to provide structure and predict ability, but their application and the award of remedies can be tempered by the exercise of judicial discretion to secure a just and fair result. 7 The operation of modern Equity is particularly well illustrated by the Supreme Court’s analysis in Vauxhall Motors Ltd v Manchester Ship Canal Co Ltd 8 of the equitable remedy of relief from forfeiture of a right. This remedy is available to prevent the defendant from forfeiting the claimant’s right in respect of an asset where the claimant has failed to comply with an obligation owed to the defendant, such as payment for the right, in circumstances where the forfeiture of the right is regarded as unconscionable, because there are other less extreme remedies for non-payment available. In that case the claim ant had inadvertently failed to pay £50 for a licence to use the defendant’s neighbouring land, as a result of which the defendant sought to terminate the licence so that the claim ant would lose the use of the land, which use was valued at over £300,000 a year. Lord Briggs, speaking for the majority of the Supreme Court, stated that the remedy of relief from forfeiture ‘plays a valuable role in preventing the unconscionable abuse of strict legal rights for purposes other than those for which they were conferred’. 9 He went on to emphasize, however, that the remedy ‘needs to be constrained with principled boundar ies, so that the admirable certainty of English law in the fields of business and property is not undermined by an uncontrolled intervention of equity in any situation regarded by a judge as unconscionable’. 10 The Supreme Court in that case was willing to expand the ambit of the equitable remedy of relief from forfeiture to include the forfeiture of pos sessory rights over land, so covering forfeiture of a licence to use the defendant’s land, whereas previously the remedy had only been available in respect of proprietary interests in land, although it was available in respect of possessory rights to chattels. This expan sion of the ambit of the remedy was defended specifically on the ground that this was a principled extension of the law which operated within clear boundaries and so was sufficiently certain. 11 But the Supreme Court was not willing to expand the jurisdiction further (to encompass any right to use property) with the control of the remedy being left simply to the exercise of the judge’s discretion, since this would undermine the cer tainty of the law. 12 Lady Arden, whilst agreeing with the result of the case, was willing to contemplate greater uncertainty in the operation of Equity as an inevitable consequence of it being founded on principles, the application of which depends on the exercise of the judge’s discretion by careful assessment of the facts and context of the case, rather than rules which are automatically applied. 13 It is this conflict between a rule-based and a discretionary-based approach to the operation of Equity which characterizes much of the contemporary discussion about the nature of the subject and which will be examined throughout this book. © Oxford University Press

6 Ibid . 7 Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21, [2018] 1 WLR 2052, [57] (Lord Briggs). 8 [2019] UKSC 46, [2020] AC 1161. 9 Ibid., [2]. 10 Ibid. 11 Ibid., [47]. 12 Ibid., [50]. 13 Ibid., [64].

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