An introduction to equitable remedies

Abstract

Introduction Remedies evolve from the procedures courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, and the jury decided those questions. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies such as juries cannot supervise the performance of contracts, ensure compliance with injunctions or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant. Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life. Because current equitable practice emerged from the Chancellor's delivery of individual justice, based on the merits of the case and the circumstances of the particular parties before it, equitable remedies are always discretionary. They are not immediately granted once a plaintiff proves her claim (as is the case with contract and tort), but may perhaps be limited or denied altogether in response to a range of factors relevant to the particular claim. It is a feature of equitable remedies that the court's discretion is exercised after consideration of the positions of both parties before it; sometimes the effect of the remedy on other parties, including the wider community, is considered too. The array of remedies available in equity looks bewildering at first sight, but it becomes obvious in most cases that only one or two remedies will provide the kind of relief the plaintiff is looking for. At common law the plaintiff is limited to damages as a remedy; the plaintiff's question is ‘how much money am I entitled to?’. In equity, however, a wide array of remedies are available; so the plaintiff's question becomes ‘what remedy will put me in the position I would like to be in?’.