Modern Equity: Revolution or Renewal from Within?

Abstract

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

Keywords: private law, equity, third party liability, undue influence, mistake, illegality