LAW AND LEGAL SYSTEMS

PRECEDENT - CHAPPTER 6 B. ANTOINE

LLS in the Commonwealth Caribbean originated from the UK and common law heritage. It is also created
within the region.

St. Lucia and Guyana originate not only from UK but France and Netherlands, respectively.

Sources of Law:

1. Legal Sources - shape and form the legal system more than the others. Basis of law that gives law
validity:

- Constitution

- Legislation

- Common Law and judicial precedent

- Custom

- International Law, law of regional treaties (not known as a source of law)

- Equity (eg. offshore financial jurisdictions)

2. Literary Sources - location of law/where law can be found

3. Historical sources - causative factors behind the rule, its origin and development. eg, colonial process.

PRECEDENT - CHAPTER 8 B. ANTOINE

OVERULING - that precedent should not be

overruled where no new reasons for the change have been identified by the court and the only rationale
is a belief that the precedent is simply wrong.

Binding Precedent - hierarchy - stare decisis "Standing by decision" - Based on the concept that judges
do not create law but find law in conformity with existing legal rules - declaritory theory (traditional
approach) - lower courts are bound by decisions made in higher courts - does not exist in civil law
systems.
Persuasive Precedent - obiter dicta "other things said" - higher courts can be persuaded by decisions
made in the lower courts but they are not bound by it - used as guidance (other commonwealth
countries)

ASSESSING PERSUASIVENESS:

- jurisdiction - eg, UK similar to Trinidad (same laws)

- Status of court (hierarchy)

- Date (old or new, principles may change)

- Reputation of judge (if judge's decision overruled, questions of judge's ability to apply law can affect
persuasiveness).

ADVANTAGES OF THE DOCTRINE OF PRECEDENT:

1. Binding precedent provides for legal certainty and decision

2. referance to similar factual scenarios

3. guidance on interpretation

DISADVANTAGES OF PRECEDENT:

1. Excessive volume of reported cases makes it difficult to find legal principles

2. Illogical, technical distinctions in the process of distinguishing

3. Rigidity (inability to change)

Ratio decidendi "rationale of decision" - rule aiding decision - binding element of case

obiter dicta - not binding "by the way" statements. persuasive statements. eg, hypothetical scenarios,
comments on morals/public policy, statements on facts

Res Judicata - adjudicated judgement/final judgement

Per incuriam "through lack of care" - principle that may affect outcome was not considered/brought to
attention by court. Can result in mistrial.

Per curiam - decision of court made by court collectively (multiple judges in appellate court)

First Impression Decisions

If there are no precedent on a particular issue, judge can use discretion to rule on case.

Subsequent judges are not BOUND by that first impression decision.

pg 22 - CoA circumstances where decisions not binding:

1. choice between inflicting authorities, decision not followed, deemed overuled.

2. CoA refusal to follow own decision/conflicts with decision of higher court

3. not bound if decision reached per incuriam

DEVIATION FOR CRIMINAL JURISDICTION

The Criminal Division of a Court of Appeal may not always be bound by decisions emanating from the
respective division of the Court. Primarily, the Court will not consider itself bound by its previous
decision in a criminal matter where this would cause injustice to the appellant.

Constitutional Law - exception to binding precedent as the Constitution is a "living instrument" (has its
own binding).

OECS Court of Appeal - Organisation of Eastern Caribbean States - persuasive if they are a separate CoA
for each jurisdiction.

Distinguishing Precedent - Judge can use the facts of the case to see whether or not a precedent should
be applied or distinguished (each party has a different interpretation of precedent coming to different
outcomes). eg, Rv Dawson (exception to eggshell rule/different interpretation of same precedent).
Reversing a Decision - Higher court can reverse a lower court's decision. This is when the issue in that
specific case is affected but the PRINCIPLE is not done away with. New precedent may be formed but
ORIGINAL not done away with.

Overuling Decision - Actual Principle/Precedent is ABOLISHED. Ratio Decidendi NO LONGER BINDING.

Can take place in the case itself or statute. Line of precedent encompassing that principle disappears.
Line of precedent shows some sort of injustice/unfair. Leaave up to Parliament.

So in distinguishing the precedent, the original precedent can still be used for future references but in
overruling the original cannot be used.

Cause of action - writ

EQUITY - CHAPTER 9 B. ANTOINE

Equity/Equitable principles means fairness, justice or what is morally just in legal sense:

- inspired by ideas of justice

- Law of equity based on rules of conscience

TODAY:

Equity is a branch of law that has principles of English law developed and applied in chancery
(jurisdiction over business and property disputes), admiralty (jurisdiction over maritime contracts, tort,
injuries, offences) and ecclesiastical (relating to Christian Church/jurisdiction of religious matters) courts.

Equity is part of common law but NOT part of common law tradition. Dealt in the same court.

According to Maine - "Equity is the adaption of law to social wants."

Common Law has duality:

1. Common law rules

2. Rules of equity
Common Law meanings:

1. Belonging to 'English' law or legal tradition.

2. Source of law coming from case law/precedent.

3. Not equity - law developed by ancient common law courts NOT courts of Chancery

Equitable Rules, rights & remedies - Courts of Chancery

Legal RRR - Common Law courts

HISTORICAL JUSTIFICATION AND DEVELOPMENT OF EQUITY

New remedies needed to be developed since the only available remedy under common law was
DAMAGES (cause of action/remedy AKA Writs) (Money as compensation). This was not satisfactory
amongst the plaintiffs.

Instead, the remedies needed included returning comething (land, etc) or to evict someone.

COURT OF CHANCERY

NOT A COURT OF EQUITY ANYMORE. EQUITY AND CMMON LAW ARE DONE IN THE SAME COURT.

Became separate court in 15th Century (1400s).

Matters brought here are because no SUITABLE remedy could be found under COMMON LAW.

Petitions for preferred remedies which can give relief in the interest of justice were passed by Lord
Chancellor.

Chancellor acted on conscience (moral belief eg, fairness) of the parties.

This was created to correct injustices in the legal system.

NATURE AND CONTENT OF EQUITY

Can grant remedies even if no strict legal right exists.

DIFFERENCE:

Common law remedies are available 'as of right' regardless of the conduct. ONLY if there is an
infringement of legal right.

Equitable remedy (discretionary meaning discretion is exercised according to rules eg, if enforcing a
contract can cause hardship Shiloh Spinners Ltd v Harding) is only given if the plaintiff deserves it (eg, if
there is a wrong but conduct is inappropriate, NO REMEDY).

pg 4, Dudley v Dudley - nature of equity.

MAXIMS (sayings) OF EQUITY

1. 'Equity does not suffer wrong to be without remedy' - ability of equity to create new remedy where it
does not exist in common law

2. 'Equity does not assist a volunteer' - Would not grant a reward/benefit to a person that has not
earned it/paid for it (given no consideration)

3. 'He who comes to equity must come with clean hands' - person expecting remedy must have a clear
conscience/ must not have done anything wrong with reference to the matter in court. Eg, Hubbard v
Vosper (wanted injuction to restrain breach of copyright on book about scientology but was protecting
secrets by deplorable means therfore not deserving of remedy). Looks towards past.

4. 'Equity looks to intent and not to form' - The doctrines of part performance and estoppel (principle
stopping someone from contradicting/going against what they said previous) may be traced.

5. Equity acts in personam (against a person) rather than rem (against a thing) - reviewed as a personal
right rather than a right in property itself.
6. 'He who seeks equity must do equity' - Person receiving remedy must act in equitable manner. (hand
in hand with No. 3). This looks towards future.

RELEVANCE OF EQUITY:

- applicable in:

1. Property - trust is unique to common law systems

2. Contract - fix contract flaws

NEW RIGHTS AND REMEDIES

1. Concept of equitable property eg, trust (trustee in circumstances where equity will compel him to
administer it for the benficiary).

- Rights of beneficiary under a will or a trust.

- The existence of an equitable interest (right over property giving holder the right to acquire legal
claim/entitled to)

- Equity of redeption (mortgages) - mortgagor (home owner/borrower) right to redeem property once
debt has been paid.

REMEDIES:

2. Injunction - prevent or compel an action.

- Mareva injunction - restrain defendant from removing assets from jurisdiction (eg, moving money from
a bank in one country to another abroad (offshore accounts)). Prevents forseeable wrong (eg. nuisance -
human activity that is harmful or offensive to others and gives rise to a cause of action)

3. Specific performance - carry out obligation under contract or trust

4. Rectificatin - correct a mistake in a contract that does not reflect intention of the parties

5. Restitution - place defendant in original position before wrong occured.

6. Estoppel - prevent someone from going against something they said when the party acted in reliance
to the promise. eg, Bacchus and Another v Ali Khan and Others

7. Anton Pillar - Order to enter into premises to remove documents and place them in custody. Eg,
Anton Piller v Manufacturing Process Ltd.

8. Tracing - tracing where the person sent the money.

DIFFERENCE BETWEEN INJUCTION AND ESTOPPEL:

injunction is when you prevent or make someone do something and estoppel is when you make
someone do something because you are owed it.

WHEN THERE IS A CONFLICT BETWEEN COMMONLAW AND EQUITY, EQUITY WILL WIN/PREVAIL.

EQUITABLE REMEDIES ARE DISCRETIONARY (ADMINISTERED AT THE JUDGE'S DISCRETION)

TRUST (CONT OF 1)

This is a method of holding property whereby the interests in the property are divided.

LEGAL INTEREST - Held by the Trustee

BENEFICIAL INTEREST - Held by Beneficiary

Trustee is ment to be administering property as a benefit of the beneficiary. eg, Trustee can invest
money they are holding to increase it for the beneficiary

TAKE AWAY FROM LECTURE:

- Equity was a source of law ORIGINALLY separate from the common law. SINCE BEEN FUSED. Because of
fusion, it is subject to precedent.
- Main difference: Equity has a wider range of remedies

- REMEDIES ARE DISCRETIONARY BUT CAN TRUMP THE COMMON LAW.

- Prevails because of development of fusion.

- Goes on intention. Even if you did not fully complete something, court can say you tried/had the
intention and award remedies.

EG. If X wants to transfer shares to Y, And X does everything they could (transfer shares agreement to
company but company has not done the transfer) and dividends are awarded with shares. Y says they
want dividends but X says the transfer did not go through. The court will say that because X intended for
shares to be transferred then the dividends are Y's. Even if procedure has not be completed fully.

- Equity is decision of matter not Principle.