ABSTRACT
Equity deals in essential truths; and it also deals in technical detail. The quintessential truth is that in the modern world each of us demands that we are treated as being valuable individuals. Equity is one of the ways in which we do that. As James LJ put it in Fowkes v Pascoe , 1 in relation to rebutting the arbitrary presumptions of advancement, 2 the court should listen to our story (about how we came to have property in that instance) and craft
its judgment accordingly. That is all we want as human beings: to be heard, to be valued and to be treated fairly. As Aristotle recognised, strict legal rules will not deal fairly with every situation and therefore equity is necessary to generate that fairness. 3 While equity was considered in the 16th century to be arbitrary (because it had granted its judges complete discretion to reach whatever judgments they deemed to be appropriate), modern equity cannot be accused of the same failing. As Jaggard v Sawyer 4 illustrates, the first instinct of any English judge applying equitable principles (such as the award of an injunction) is to identify and schematise the factors which must be considered by a court before making such an award. Even in the use of discretionary doctrines like injunctions, equity operates on the basis of precedent and, in line with fields as disparate as family law and financial regulation, it uses high-level principles to guide the use of those precedents in individual cases.
