ABSTRACT
There are two possible kinds of discretion: strong and weak discretion. Strong discretion would mean that a judge could decide to do anything that she considered to be appropriate in the circumstances, whereas weak discretion means that even though a judge could conceivably do anything she wished she will nevertheless follow case law precedents and limit the exercise of her discretion in accordance with those principles. The type of discretion used by the courts of equity is the weak variety. An example of this is the decision of the Court of Appeal in Jaggard v Sawyer (1995) in relation to the award of an interim injunction. The Supreme Court Act 1981 empowered the court to make any such order as it saw fit: something which could have been taken by the Court of Appeal to have granted it a strong discretion. However, the court instead considered itself to be limited to the exercise of this statutory power only in accordance with five clear principles which had been set out in previous decisions. Thus, the English courts tend to consider themselves only as having a weak discretion in the award of equitable remedies even though we might otherwise have considered the potential breadth of equity as discussed by Aristotle as granting them a stronger discretion.
