Lawyers and, occasionally, judges may think that the equitable
jurisdiction of the courts is simply an exercise of judicial
discretion to avoid a result that seems unfair to somebody. The
Privy Council usefully reminds us in Cukurova Finance Int'l
Ltd v Alfa Telecom Turkey Ltd,  UKPC 20, that in 'no
way' should it be suggested 'that equity recognises any
general or open-ended discretion'; equity proceeds instead on
the basis of principle and well-settled (if sometimes not always
clearly articulated) rules.
At issue in the case itself (on appeal from the courts of the
British Virgin Islands) was whether relief from forfeiture was
available to assist a party which had granted another the right to
appropriate charged shares in order to satisfy liabilities under a
financing agreement, the party subject to the forfeiture having
initially defaulted but then subsequently tendered the full amount
payable (which the other party rejected). The judicial committee
disagreed whether relief from forfeiture was available on the
facts: the majority said yes on the grounds of unconscionability
and 'special circumstances'. Lord Neuberger and Lord
Sumption said no, since granting relief would essentially extend
the term of the loan; any relief from that should be in accordance
with the terms of the agreement, the majority's invocation of
'special circumstances' being dangerously uncertain and a
departure from the 'fixed principles' of equity. For Lord
Neuberger, the majority risked treating 'unconscionability'
as 'a panacea for adjusting any contract ... when it shows a
rough edge to one side or the other', which he thought
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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