Equity in Ireland

mountainyman

This is not an assignment.

To what extent is the law on Equity and Trusts more static that other areas of Irish law?

MM

dermot_sheehan

Lack of much legislation in the area? Most principles having been set down years ago, the courts are reluctant to change them.

johnnyskeleton

What exactly do you mean by static?

If you mean that there haven't been many recent developments, in the last 30-40 years new kinds of injunctions have been bandied about the place (mareva, anton pillar, bayer) and the question whether you can get specific performance of a contract for the sale of personal property is quite big. Promissory estoppell is becoming more of a sword (if it is not already) than a shield.

In McGrory v. ESB [2003] 3 IR 407, the court found that it had the inherent jurisdiction to stay proceedings where a plaintiff refuses to attend a medical examination. This has all the characteristics of classic equity - previously didn't exist in this jurisdiction - no rule of court or precent - test based on fairness between the parties etc. Although there was no mention of equity, in my opinion it is de facto equity.

Also, if you take some statutory powers such as barring/safety orders, they are basically injunctions on a statutory footing.

I suppose one thing is that the boundaries between law and equity has blurred so much that it makes no odds anymore.

Also, equity is a small area, and it is relatively confined, so it makes sense that there are more developments in the rest of Irish Law.

As gabhain7 points out, it is an old area. Obviously any developments will be in nieche areas rather than in big areas. Plus, from a certain point of view, there hasn't been a major judge led change in the law since Donoghue v. Stephenson in 1932ish.

As for trusts, they do exactly what it says on the tin. If they weren't working, or if a new trust was needed, I'm sure the courts would oblige.

mountainyman

johnnyskeleton wrote:

..from a certain point of view, there hasn't been a major judge led change in the law since Donoghue v. Stephenson in 1932ish...

Good point

MM

Gobán Saor

johnnyskeleton wrote:

Plus, from a certain point of view, there hasn't been a major judge led change in the law since Donoghue v. Stephenson in 1932ish.

Roe v. Wade?

johnnyskeleton

Gob&#225 wrote: »

Roe v. Wade?

Ok, there hasn't been a major judge led change in the common law system as it affects Ireland since Donoghue v. Stephenson in 1932ish.

I think that things like Constitutional Law, Criminal Law, Extradition etc would be outside the scope of the original post, but if they are not then happy days.

Gobán Saor

johnnyskeleton wrote:

Ok, there hasn't been a major judge led change in the common law system as it affects Ireland since Donoghue v. Stephenson in 1932ish.

I think that things like Constitutional Law, Criminal Law, Extradition etc would be outside the scope of the original post, but if they are not then happy days.

I'd say Byrne v Ireland but, admittedly, that has a major constitutional ratio. How about McNamara v ESB then for a judge led change? Even if it is now emasculated.

johnnyskeleton

Gob&#225 wrote: »

I'd say Byrne v Ireland but, admittedly, that has a major constitutional ratio. How about McNamara v ESB then for a judge led change? Even if it is now emasculated.

I think that McNamara followed Purtill v. Athlone (if memory serves). In any case, that was rather a creative interpretation of the nexus of occupier's liability and donoghue v. stephenson than a new cause of action (recision), a new type of relief (specific performance, injuctions etc), a new system of holding property (trusts, equitable estates), a new defence (estoppell) etc.

In any event, my point is that law and equity are constantly becoming more refined. They are interpolinating to the extent that it's only a matter of time before they become completely indistinguishable.

Orchard Rebel

johnnyskeleton wrote:

In any event, my point is that law and equity are constantly becoming more refined. They are interpolinating to the extent that it's only a matter of time before they become completely indistinguishable.

The irony being that equity was developed in medieval times in order to provide greater flexibility in English law, as the common law was thought to have become too rigid.