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The discourse surrounding the enduring relevance of equity has garnered increasing attention since Lord Denning's pioneering endeavour to establish a novel framework for constructive trust in the case of Eves v. Eves^12. The phrase "equity is not past the age of child bearing"^3 implies that equity is still capable of growing and expanding to offer solutions to current legal issues that the rigidity of the Common law is unable to address. The concept of equity was groundbreaking at its initial emergence as a gloss on the common law, as it introduced novel remedies and recognised previously unacknowledged rights in cases where the common law system proved inadequate in addressing the issues at hand. The efficacy of equity was predominantly derived from its ability to innovate and adapt. However, it is important to note that this evolution was subject to regulatory oversight, similar to the governance of common law. The resolution of disputes may be influenced by many equity maxims^4. While the court has the authority to provide an equitable remedy, such a decision is rendered based on established legal principles. Hence, one could contend that the progress of equality is constrained due to the influence of established legal precedents on its outcomes^5. This assertion is challenged by several contemporary advancements in the field of equity, including the acknowledgment of restrictive covenants, the broadening of available legal remedies, the emergence of legal doctrines such as proprietary estoppel, the heightened significance of contractual licences, and the introduction of the novel concept of a constructive trust, as referenced in the ruling delivered by Lord Denning MR. Nevertheless, an endeavour has been made to employ legal precedent as a basis for justifying these contemporary advancements, all of which serve as exemplifications of judicial innovation. In Cowcher v. Cowcher [1972] 1 WLR 425^6 at p. 430 , Bagnall J expressed (^1) -, 'Case Law: Eves v Eves' (VLEX, -) accessed 3 September 2023 (^2) Eves v Eves [1975] EWCA Civ 3, 1 WLR 1338 (^3) -, 'Equity' (Oxford Reference, 2023) accessed 2 September 2023 (^4) Anne Bottomley, 'Journal of Law and Society' [1999] 20(1) Self and Subjectivities: Languages of Claim in Property Law accessed 3 September 2023 (^5) DrCharles Omole, 'ESSAY ON THE DEVELOPMENT OF EQUITY WITH COMMON LAW' (Dr Charles Omole, 23 December 2022) accessed 2 September 2023 (^6) Cowcher v. Cowcher [1972] 1 WLR 425
the view that the continued existence of equity should not be assumed, but rather its future developments must be grounded in legitimacy, derived either from established precedents or fundamental principles. This circumstance is advantageous as, in its absence, legal practitioners would be unable to provide counsel to clients regarding their title without incurring potential liabilities, and any disagreement would necessitate resorting to judicial proceedings. Equity has established several remedies, namely injunction, specific performance, account, rectification, and rescission. One area that has shown significant growth is the field of injunctions. The search order, established in the legal case Anton Piller KG v. Manufacturing Processes Ltd [1976] Ch 55^7 , considers the advancements in emerging technology and the necessity to protect intellectual property rights. Prior to initiating a copyright infringement action, it is possible for intellectual property, such as video and audio recordings, as well as computer programmes, to be easily eradicated^8. The exclusive knowledge pertaining to industrial processes has the potential to become inaccessible, hence rendering a claimant unable to substantiate their claims. The purpose of establishing a search order is to provide the claimant with the ability to access the defendant's property in situations where there is a clear and verifiable risk that said property may be lost or stolen prior to the trial. The courts are currently deliberating on the issue of equitable fairness, taking into account relevant precedents such as Columbia Picture Industries Inc. v. Robinson (1986) 3 All ER 338^9 and Universal Thermosensors Ltd. v. Hibben (1992) 1 WLR 84010 , which have established guidelines for the implementation of this stringent judgement. The case of Mareva Compaa Naviera SA v. International Bulk Carriers SA [1975] 2 Lloyd's Rep 509^11 , which was influenced by the precedent set in Nippon Yusen Kaisha v. Karageorgis [1975] 1 WLR 1093^12 , involved the application of a well-established legal remedy, namely the freezing injunction. While a claim may possess validity, its efficacy becomes nullified if its execution is rendered impracticable due to the absence of assets. In instances of international litigation, it may be feasible to transfer assets overseas, so rendering the collection of the debt resulting from a decision either exceedingly challenging or (^7) Anton Piller KG v. Manufacturing Processes Ltd [1976] Ch 55 (^8) Anne Bottomley, 'Journal of Law and Society' [1999] 20(1) Self and Subjectivities: Languages of Claim in Property Law accessed 3 September 2023 (^9) Columbia Picture Industries Inc. v. Robinson (1986) 3 All ER 338 (^10) Universal Thermosensors Ltd. v. Hibben (1992) 1 WLR 840 (^11) Mareva Compaa Naviera SA v. International Bulk Carriers SA [1975] 2 Lloyd's Rep 509 (^12) Nippon Yusen Kaisha v. Karageorgis [1975] 1 WLR 1093
and the case of Stack v. Dowden [2007] UKHL 17^22 decided by the House of Lords have reinstated certain aspects of the constructive trust's previous adaptability, thereby indicating the continued relevance of equity. The domain of legal licencing has witnessed significant dynamism in relation to the emerging paradigm of the new model constructive trust. The idea of privity of contract^23 governed the protection offered by a contractual licence under common law, hence excluding any safeguards against third parties. Equitable remedies are employed in order to prevent a licensor from breaching a written licence agreement and to enable a licence to be enforceable against third parties. It is widely acknowledged that certain licences have the potential to impose a constructive trust or proprietary estoppel, thereby leading to the establishment of an equitable proprietary interest. In the legal case of Binions v. Evans [1972] Ch 359^24 , CA, the presiding judge, Lord Denning MR, rendered a decision wherein he determined that the purchasers were bound by a contractual licence established between the previous owners and Mrs Evans, who was an occupant. Given the clear agreement made by the buyers to purchase the property subject to Mrs. Evans' interest, and the subsequent payment of a reduced price in consideration of this arrangement, a constructive trust was established in favour of Mrs. Evans. In the case of Re Sharpe [1980] 1 WLR 219^25 , a trustee in bankruptcy was also subject to the imposition of a constructive trust. This trust pertained to an interest acquired by an aunt who provided a loan to her nephew for the purpose of acquiring a property, under the understanding that she would have the right to reside there for the duration of her lifetime. The presence of case law that seemingly retracts from a development that potentially beyond the boundaries demonstrates the dynamic nature of these progressing domains. In the case of Ashburn Anstalt v. W. J. Arnold & Co. [1989] Ch 1^26 , the Court of Appeal provided obiter dictum, which was subsequently affirmed in Habermann v. Koehler (1996) 73 P & CR 515^27. According to this legal precedent, the establishment of a constructive trust through the granting of a licence is contingent upon the third party's conscience being (^22) Stack v. Dowden [2007] UKHL 17 (^23) -, 'Privity of Contract' (Thomson Reuters-Practical Law, -) accessed 3 September 2023 (^24) Binions v. Evans [1972] Ch 359 (^25) Re Sharpe [1980] 1 WLR 219 (^26) Ashburn Anstalt v. W. J. Arnold & Co. [1989] Ch 1 (^27) Habermann v. Koehler (1996) 73 P & CR 515
impacted^28. The implementation of the proposed action is contingent upon the demonstration of behaviour that warrants such action. Consequently, judges will be compelled to enhance their judicial invention in areas pertaining to equity in subsequent occurrences. Proprietary estoppel is an equitable principle that has experienced significant modifications in pursuit of justice since its establishment in the influential ruling of Dillwyn v. Llewelyn (1862) 4 De GF & J 517^29. The concept is based on the principles of encouragement and consent, wherein equity was inclined to intervene and alter the rights of the persons involved. The relevance of the Court of Appeal's ruling in Gillett v. Holt [2001] Ch 210^30 was greatly enhanced due to its broader interpretation of the theory and its central reliance on the concept of unconscionability. The introduction of new approaches to the equitable doctrine in commercial contexts can be observed through subsequent decisions such as Crossco No 4 Unlimited v. Jolan Ltd [2011] EWCA Civ 1619^31 and Herbert v. Doyle [2010] EWCA Civ 1095^32. Additionally, the House of Lords decisions in Yeoman's Row Management v. Cobbe [2008] UKHL 55^33 and Thorner v. Major [2009] UKHL 18^34 have also contributed to the evolution of the doctrine. This development represents a departure from the established system of property rights and their registration implemented by the legislative body. The cases of Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P & CR 8^35 , Matharu v Matharu (1994) 68 P & CR 93^36 , Costello v Costello (1995) 70 P & CR 297^37 , and Durant v Heritage [1994] EGCS 134^38 demonstrate the continued efficacy of the doctrine of proprietary estoppel and the safeguarding of licences through estoppel as employed by the judiciary to protect licences and equitable rights. The extent to which a right is protected may vary depending on the unique circumstances. In the case of Matharu v. Matharu^39 , it was (^28) David G Carlson, 'Marquette Law Review' [2019] 103(2) Constructive Trust and Fraudulent Transfers: When Worlds Collide accessed 2 September 2023 (^29) Dillwyn v. Llewelyn (1862) 4 De GF & J 517 (^30) Gillett v. Holt [2001] Ch 210 (^31) Crossco No 4 Unlimited v. Jolan Ltd [2011] EWCA Civ 1619 (^32) Herbert v. Doyle [2010] EWCA Civ 1095 (^33) Yeoman's Row Management v. Cobbe [2008] UKHL 55 (^34) Thorner v. Major [2009] UKHL 18 (^35) Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P & CR 8 (^36) Matharu v Matharu (1994) 68 P & CR 93 (^37) Costello v Costello (1995) 70 P & CR 297 (^38) Durant v Heritage [1994] EGCS 134 (^39) Matharu v Matharu (1994) 68 P & CR 93
-, 'Equity' (Oxford Reference, 2023)
accessed 2 September 2023 -, 'Privity of Contract' (Thomson Reuters-Practical Law, -) accessed 3 September 2023 Anne Bottomley, 'Journal of Law and Society' [1999] 20(1) Self and Subjectivities: Languages of Claim in Property Law accessed 3 September 2023 David G Carlson, 'Marquette Law Review' [2019] 103(2) Constructive Trust and Fraudulent Transfers: When Worlds Collide
accessed 2 September 2023 Dr Charles Omole, 'ESSAY ON THE DEVELOPMENT OF EQUITY WITH COMMON LAW' (Dr Charles Omole, 23 December 2022) accessed 2 September 2023 PRIMARY SOURCES Anton Piller KG v. Manufacturing Processes Ltd [1976] Ch 55 Ashburn Anstalt v. W. J. Arnold & Co. [1989] Ch 1
Masri v. Consolidated Contractors International (UK) Ltd (No 2) [2008]
rendering judgements in present legal issues. The ratio decidendi, which serves as the legal rationale for the court's decision, constitutes the defining characteristic of a precedent. Judicial decision-makers depend on ratio decidendi as legal principles to inform their rulings in later cases that share the same essential factual circumstances. When a ratio is juxtaposed with discrete material facts, its legal efficacy diminishes and it assumes a persuasive nature. Obiter dicta comments refer to additional statements made inside a legal case that are not essential to the resolution of that specific case, but may hold relevance in future instances should the pertinent facts undergo alteration. Obiter dicta are commonly considered to carry significant weight as legal precedents^4546. Within a common law framework, judges are obligated to adhere to prior judicial decisions, irrespective of their personal concurrence, due to the binding nature of judicial precedent. This conduct adheres to the notion of "stare decisis," which entails the preservation of previously rendered rulings. The principle of stare decisis is of paramount importance since it upholds equity by guaranteeing the uniformity of the law. In situations where there is a lack of existing legal precedents within a certain subject, the courts possess the authority to establish novel norms, sometimes referred to as original precedents. This underscores the doctrine's capacity for adaptability. The significance of precedents is evident within the hierarchical framework of the court system, wherein the theory of judicial precedent operates through horizontal and vertical precedents. When courts within the same hierarchical structure adhere to the precedents set by one another, they adhere to established norms to ensure the preservation of legal certainty. The House of Lords (HOL) did not face limitations on their own judgements until the mid-19th century. Nevertheless, the House of Lords (HOL) set a significant precedent in the case of London Street Tramways v. London County Council in 1898^47. This ruling established that the HOL would thereafter be obligated to adhere to their own rulings. The intention behind this action was to prioritise certainty over fairness in specific situations, as stated by Lord Halsbury, even if it resulted in adverse consequences for certain individuals. This judgement provided finality to the conditions at hand by eliminating the possibility of reiterating (^45) John Chipman gray, 'Harvard Law Review' [1895] 9(1) Judicial Precedents A Short Study in Comparative Jurisprudence accessed 4 September 2023 (^46) -, 'Practice Statement 1966' (UOLLB First Class Law Notes, 17 June 2023) accessed 4 September 2023 (^47) London Street Tramways Co Ltd v London County Council [1898] AC 375
identical legal arguments and avoiding contradicting ratios. As per the assertions made by L. Halsbury, the necessity for assurance may solely be satisfied by the application of the doctrine of irrevocable precedent. The rectification of any perceived errors in a ruling made by this legislative body may only be accomplished via the enactment of an Act of Parliament. In contrast, Langbein argues that L. Halsbury's assertion demonstrates a lack of comprehension about the notion that exclusivity is not a prerequisite for effectively embodying certainty as a desirable attribute. It is imperative to bear in mind that certainty should not be regarded as the exclusive virtue. Flexibility should be regarded as a virtue within the field of law and be granted due consideration in determining one's position within this domain. The concern expressed by L. Halsbury over the "disastrous inconvenience of having each question subject to being reargued" represents merely a single facet of the broader issue at hand^48. The strict adherence to the regulations outlined in the London Street Tramways^49 resulted in a multitude of challenges. The implementation of the statute resulted in a constraining effect, impeding the progress of subsequent legal developments. Consequently, a multitude of cases were adjudicated in an unjust manner through the application of outdated ideas, leading to enduring legal deficiencies. The case of Gallie v. Lee^50 serves as an illustrative example of the protracted duration it took for the courts to revise an antiquated rule, spanning a period of 60 years. An alternative method to evade the constraints of being bound was to differentiate between specific cases. However, the effectiveness of this approach was restricted due to the requirement for judges to await the emergence of fresh material facts before they could employ this tactic. Consequently, the House of Lords (HOL) issued the Practice Statement in 196651 , recognising that strict adherence to legal precedents might occasionally lead to inequitable outcomes and hinder the proper evolution of the legal system. As per Lord Gardiner's statement, the House of Lords (HOL) possesses the ability to depart from prior rulings by utilising the Practice Statement^52 , provided that such deviation is deemed acceptable. Through the exercise of horizontal overruling, the House of Lords (HOL) possesses the authority to deviate from a previously established legal (^48) John Chipman Gray, 'Harvard Law Review' [1895] 9(1) Judicial Precedents A Short Study in Comparative Jurisprudence accessed 4 September 2023 (^49) London Street Tramways Co Ltd v London County Council [1898] AC 375 (^50) Saunders v Anglia Building Society [1970] UKHL 5 (^51) Practice Statement 1966 (^52) Practice Statement 1966
initially implemented in the context of criminal law in the case of R v Shivpuri (1986)^57 , two decades after its enactment. Shivpuri, in the case of Anderton v. Ryan^58 , overturned its previous decision rendered in the House of Lords (HOL) due to the perception that the initial finding was erroneous and had garnered substantial adverse publicity^59. AWB Simpson, in his argument, contends that the only power relinquished by the House of Lords (HOL) subsequent to 1898 was the ability to decline adherence to a range of prior decisions without making distinctions between them. Simpson, thus, supports the stringent protocol established in the London Tramways case^60. The individual further expressed their belief that the use of power had been sporadic in previous instances, thereby implying that its absence did not constitute a significant detriment. According to John Langbein, a scholar who engaged with AWB Simpson's counterargument, the London Tramways^61 rule exhibited a significant preventative nature. This rule effectively deterred lawsuits in the 20th century that would have necessitated the reversal of a prior judicial decision. John Langbein argues that the notion that the doctrine of precedent is solely concerned with ensuring certainty is a misguided stance for the rule of law. The user posits that the Practice Statement of 1966^62 , which effectively overturned the precedent set by London Tramways , marked the conclusion of an imprudent legal doctrine. The case of British Railway Board v. Herrington^63 exerted a significant impact on the development of common law within the realm of tort law. Furthermore, the House of Lords (HOL) employed the Practice statement in the legal matter of Miliangos v. George Frank^64 to reverse its previous ruling in Havana Railway due to its obsolescence. The Miliangos decision holds significance for the concept of judicial precedent as it effectively showcased the importance of flexibility in the formation of common law. The examination of vertical precedents would entail a more comprehensive analysis. Similar to the House of Lords (HOL), the Court of Appeal (COA) is subject to the limitations imposed by the decisions of superior courts within the judicial hierarchy. Despite the establishment of three exceptions to this general rule by Lord Greene in the case of Young v. (^57) R v Shivpuri [1986] UKHL 2 (^58) Anderton v Ryan [1985] AC 560 (^59) -, 'Practice Statement 1966' (UOLLB First Class Law Notes, 17 June 2023) accessed 4 September 2023 (^60) London Street Tramways Co Ltd v London County Council [1898] AC 375 (^61) London Street Tramways Co Ltd v London County Council [1898] AC 375 (^62) Practice Statement 1966 (^63) British Railways Board v Herrington [1972] AC 877 (^64) Miliangos v George Frank Ltd, [1976] AC 443
Bristol Aeroplanes^65 , the Court of Appeal is obligated to adhere to its own previous decisions. One notable aspect is that the COA possesses the autonomy to choose between two conflicting options, with one prevailing over the other. One aspect to consider is that in cases where subsequent rulings by the House of Lords are in conflict with prior decisions made by the Court of Appeal, the COA is obligated to adhere to the HOL decision, so effectively nullifying the earlier COA decision. In the case of Miliangos v. George Frank^66 , the Court of Appeal had the opportunity to use an exception; instead, it opted to overlook the finding of the House of Lords in favour of its own COA decision. The members of the House of Lords questioned the technique employed in the decision-making process when the case was presented before them, as it appeared to disrespect the principle of stare decisis^67. Finally, it should be noted that if a verdict was made per incuriam, the Court of Appeals is not obligated to adhere to it. The matter that has to be addressed is the extent of flexibility afforded by these exceptions, which enabled COA to modify its prior decision. The initial two instances can be more accurately characterised as logical acts rather than true exceptions. It is evident that the Court of Appeals is obligated to select one of the conflicting judgements and opt to adhere to a verdict made by the House of Lords in accordance with the principle of vertical precedence. Hence, the final exception pertaining to as per incuriam arises when the preceding case's judgement neglects to consider pertinent legal precedents or statutes, and the error must be of such gravity that it significantly impacts the case's outcome. This exception stands as the only genuine instance that exhibits a degree of adaptability. This provided the Court of Appeals justices with the option to reverse an erroneous ruling in order to ensure the administration of justice. However, it is important to note that instances of per incuriam are not always the only unfair ones. In numerous instances, a judicial decision that was initially deemed just has subsequently been found to be unjust. Consequently, efforts have been undertaken to diverge from the established standard. In the case of Davies v. Johnson^68 , it can be argued that Lord Denning deviated from the Court of (^65) Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA) (^66) Miliangos v George Frank Ltd, [1976] AC 443 (^67) A. Fairlie, 'Michigan Law Review' [1937] 35(6) THE DOC THE DOCTRINE OF ST TRINE OF STARE DECISIS IN BRI ARE DECISIS IN BRITISH COUR TISH COURTS OF LAST RESORT accessed 4 September 2023 (^68) Davis v Johnson [1978] 2 WLR 553
-, 'Practice Statement 1966' (UOLLB First Class Law Notes, 17 June 2023) accessed 4 September 2023 A. Fairlie, 'Michigan Law Review' [1937] 35(6) THE DOC THE DOCTRINE OF ST TRINE OF STARE DECISIS IN BRI ARE DECISIS IN BRITISH COUR TISH COURTS OF LAST RESORT
accessed 4 September 2023 John Chipman Gray, 'Harvard Law Review' [1895] 9(1) Judicial Precedents A Short Study in Comparative Jurisprudence accessed 4 September 2023 Steve Wilson, Helen Rutherford, Tony Storey, Natalie Wortley, and Birju Kotecha, 'The Doctrine of Judicial Precedent' (Law Trove-English Legal System (4th edn), 29 May 2020) accessed 4 September 2023 PRIMARY SOURCES Anderton v Ryan [1985] AC 560 B v. B British Railways Board v Herrington [1972] AC 877
Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)
- Barclays Bank plc v. O'Brien [1994] 1 AC
- Binions v. Evans [1972] Ch
- CIBC Mortgages plc v. Pitt [1994] 1 AC
- Columbia Picture Industries Inc. v. Robinson (1986) 3 All ER
- Cooke v. Head [1972] 1 WLR
- Costello v Costello (1995) 70 P & CR
- Cowcher v. Cowcher [1972] 1 WLR
- Crossco No 4 Unlimited v. Jolan Ltd [2011] EWCA Civ
- Dadourian Group International Inc v Simms [2006] EWCA Civ
- Dillwyn v. Llewelyn (1862) 4 De GF & J
- Durant v Heritage [1994] EGCS
- Duvalier [1990] 1 QB
- Eves v Eves [1975] EWCA Civ 3, 1 WLR
- Gillett v. Holt [2001] Ch
- Habermann v. Koehler (1996) 73 P & CR
- Herbert v. Doyle [2010] EWCA Civ
- Hussey v. Palmer [1972] 1 WLR
- Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P & CR
- Jones v. Kernott [2011] UKSC
- Lloyds Bank v. Rosset [1991] 1 AC
- Mareva Compaa Naviera SA v. International Bulk Carriers SA [1975] 2 Lloyd's Rep
- Matharu v Matharu (1994) 68 P & CR
- Cantliff v Jenkins [1978] 1 All E.R.
- Davis v Johnson [1978] 2 WLR
- Knuller v DPP [1973] AC
- London Street Tramways Co Ltd v London County Council [1898] AC
- Miliangos v George Frank Ltd, [1976] AC
- Miliangos v George Frank Ltd, [1976] AC
- Practice Statement
- R v Shivpuri [1986] UKHL
- Saunders v Anglia Building Society [1970] UKHL
