In the context of equitable remedies

Equitable remedies include recession and ratification, injunctions and specific performance, all of which are available from the court of equity at the discretion of such court. This essay will look at the equitable remedies available and in particular ask how men and women are treated differently in v the grant and denial of such remedies.

Recession and ratification are the first to be discussed; the two have been coupled together because they are concerned with issues surrounding the termination of contracts or the alteration of the terms within the contract. This remedy would be particularly useful where one party has consented to the transaction because the other party has applied improper and excessive pressure on them; making the contract voidable under the doctrine of undue influence. This was originally developed as a means of relieving a weaker party of the burden of a transaction who had been induced by undue pressure, [1] or where a poor ignorant person had entered into a disadvantageous transaction. [2] 

In other words to achieve ‘restitutio in integrum’, to restore parties to the position which they had occupied originally. [3] In Barclays Bank plc v O’Brian (1994) [4] Lord Browne-Wilkinson stated that there were three types of undue influence, Class 1: Actual undue influence where no special relationship between the parties exists. In such cases the general rule is that the burden of proving undue influence will rest upon the person who claims to have been wronged. Class 2A: Presumed undue influence, which exists in relationships of trust and confidence, whereby it is obvious to see that the dominant party in the relationship abused the weaker party to enter into the contract; consequently it will not be necessary for the weaker party to prove undue influence; so a parent child relationship for instance would fall under this category. Finally Class 2B: which applies to the relationships where no such presumption exists, so for example there is no such presumption between a husband and wife. However in the Royal Bank of Scotland v Etridge (No.2) Lord Nicholls found; ‘proof that the claimant had placed trust and confidence in the other, in relation to the management of financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient to demonstrate undue influence. [5] In other words, if these two facts can be shown the prime facia the defendant will be seen to have abused the influence he had, consequently the burden will shift to him, to produce evidence to show otherwise. Sadly, the general notion is that women are more vulnerable to undue influence; stereotypical views suggest women are mothers and homemakers, whilst a man can have a variety of roles, consequently the finances within a household are generally left in the hands of the husband, increasing his opportunities to abuse the wife’s trust. Belinda Fehlberg described the problem in the following way: ‘normally, such cases involve a wife who, under some emotional pressure caused by her husband, provides third party loan security to secure a loan to a business which, although conducted by the husband, often provides the family’s income. When the creditor later tries to enforce the security, the wife argues that it is invalid’. [6] The practice has now been termed “Sexually transmitted debt", [7] in other words a transfer of responsibility of debt from one partner to another because of the emotional ties and maybe the dependency factor within the relationship, which is the main reason the partner, is accepting liability.

Belinda Fehlberg went on to speak to a number of women involved in cases of undue influence in a way in an effort to gather all sides of the story. She found that most women who had acted as sureties were aware of what they were doing but felt physically incapable of withholding their consent to the mortgage. [8] Some sureties would never have said no, whatever the advice, because of their emotional and financial dependence on their husband’s bullying. [9] Others subsequently expressed disappointment that bank officials had failed to explain the practical effect of their signing. Banks have played an integral part of society for many years, they owe a special duty in relation to society, and that duty is to act fairly; and to pay particular attention when dealing with people who may be in an unequal bargaining position. [10] In Royal Bank of Scotland v Entridge No 2 (1998) [11] it was held that lenders would not be fixed with constructive notice of undue influence if they had received confirmation from a solicitor that the surety had been advised of the nature and effect of the transaction she was entering into. [12] This acted as a shield for banks, in the case of Barclays Bank v Caplan (1998) [13] the bank had arranged legal advice to be given to the wife by the same solicitor who also acted for the husband. She later claimed the solicitor had failed to inform her of the potential risk of losing her home, however the judge held because the solicitor was one her husband used, she would have entered into the charge regardless what advice was given; because she trusted her husband. [14] In the case of Gough v Commonwealth Bank of Australia (1994), a housewife with little education signed a legal charge without receiving any legal advice; even though she was the sole owner.

This problem was originally acknowledged in the case of Yerkey v Jones (1939) [15] where Dixon J held; if a married woman consented to become a surety for her husband’s debt, without fully understanding the risks, she has a prima facia right to set the transaction aside. The general rule which followed was that equity should award ‘special protection’ to wives undertaking surety transactions, preventing the lender from recovering under the guarantee if the husband has procured her consent, when she did not fully understand the effect of the guarantee. [16] However this theory was later rejected in Barclays v Bank plc v O’Brian (1994) [17] by Lord Browne-Wilkinson, nevertheless he found a ‘special tenderness’ towards women did exist in these situations, making it easier for them to establish undue influence. Furthermore he claimed that the courts recognised ‘sexual and emotional ties’ between the parties, would make it easier for the wife’s will to be overborne, as she would fear that her relationship would be damaged if she opposes her husband. [18] 

When looking at these judgments of undue influence, the automatic assumption would be that the man would take the advantage and the women would lose out. [19] However there are the rare cases where the roles have been reversed, take the case of Barclays Bank v Rivett (1997) [20] in this case, the main breadwinner of the house was the wife, and she dealt with all the finances within the household. So when she asked her husband to sign some documents regarding her new business venture, he thought nothing of it. However, she failed to inform him that he had just signed as a surety for a bank loan. Subsequently the business went into liquidation and the bank sought to enforce the mortgage. When he discovered that a possession order had been made and had the transaction set aside on the basis that he had agreed to sign the legal charge under undue influence from his wife of which the bank had constructive notice. Furthermore in Clark v Clark (1999) [21] the wife was described to be ‘devious’ and ‘wicked’ of ‘considerable charm and attraction’ who controlled her older husband for several years. [22] So the significant of these cases is that it corrects any notion of gendered behaviour. Nevertheless, cases like Rivett and Clark are rare, and therefore women will continue to be granted this equitable relief more often than men.

Moving on to injunctions, an equitable remedy requiring a party either to do or not to do a particular act; whether that be perpetual measure (permanent), or interlocutory measure(temporary until trial). Injunctions prove to be particularly useful for victims of harassment, stalking and domestic violence, so principally an effective remedy for women. Pre 1990, such behaviour would only be intervened if the victim had suffered from some physical injury. However under Domestic Violence and Matrimonial Proceedings Act 1976 [23] married and co-habiting couple’s received the ultimate protection, allowing them remove a spouse from the matrimonial home by using an ouster injunction. However getting an ouster order can prove to be difficult, take the case of F (Minors) Parental Home: Ouster (1994) where it was held, neither the Children Act 1989 [24] nor the court's inherent jurisdiction allows the making of an ouster order without violence. In Khan v Khan (1995) [25] the courts held, there must be an intolerable situation and danger in the home before an order will be made; abuse and threats made to the wife for a continuous period was held to be an intolerable situation. Consequently this requirement of an ‘intolerable situation’ is likely to limit this equity relief to mainly women, as reports show an estimated two women dye a week as a result of domestic violence. [26] Furthermore it is particularly useful in divorce cases, as the person who is removed from the house is likely to have limited access with the children, and the person granted the matrimonial home is the one who will care for the children, which is likely to be the mother.

There are two areas in which there has been important development in the field of interim injunctions; these are search orders and freezing orders, formerly known as Anton Pillars and Mareva orders. Freezing orders are designed to prevent the defendant from disposing assets which are vital to the claimants claim. Search orders originated from the famous case of Anton Piller K.G v Manufacturing Process (1976) [27] the purpose of this order is to preserve evidence that a defendant, warned of impending litigation, would be likely to conceal or destroy so that it would not be available as evidence supporting a plaintiff's cause of action. [28] They have been described as having a ‘truly draconian’ effect, as they do invade people’s basic civil liberties [29] and therefore are granted cautiously. Three essential requirements from the Anton Piller need to be satisfied; (1) an extremely strong prime facia case; (2) the potential or actual damage to the claimant must be very serious; and (3) there must be clear evidence that the defendant has in his possession incriminating documents and that there is real possibility that he may destroy such material before any application with notice can be made. Even if all three are met, the courts will only grant a search order once satisfied that the need for an order outweighs the injustice of making an order against the defendant. [30] In Universal Thermosensors Litd v Hibben (1992) further conditions were imposed on the use of search orders, these have now been incorporated into the standard form. [31] Section 1(b) of the Anton Piller order now states ‘where the premises are likely to be occupied by an unaccompanied woman and the supervising solicitor is a man, at least one of the persons attending on the service of the order should be a woman’. [32] So it seems that recent publicity concerning the dangers which women face when alone, travelling or in their homes, has filtered into the world of the Anton Piller order. [33] However, men may be equally as distressed, but are unable to gain extra protection against such an intrusion. Consequently there appears to be an explicit sex differential within the Anton Pillers, portraying women to be more vulnerable than men, especially when home alone with young children.

In matrimonial cases, strong evidence is required before an order will be granted. Take the case of Emanuel v Emanuel (1982) [34] and the K v K (1982) [35] in both these cases the husband had failed to disclose all his assets and therefore and it was necessary to obtain details of his stock in trade. [36] This can prove difficult but it is not uncommon as a last resort. [37] It is still powerful tool in divorce settlements for the ‘weaker party’ which is still usually a woman, even in modern case law. [38] 

Finally the remedy of specific performance requires the defendant to do what he has promised to do. Common law allows a defendant to be a “bad man" and break his contractual obligations and pay damages for the privilege, where equity intervenes it will compel a defendant to be a “good man" and fulfil his obligations. [39] It is a discretionary remedy like other equitable remedies; but, in ordinary cases of sale of land, the court will normally grant it or deny it only on proof of special facts. It acts as is an extremely powerful remedy, but can prove difficult to achieve, if in conflict with settled principles; such as public policy. Public policy plays an important part in the grant and denial of specific performance. [40] Take the case of Wroth v Tyler (1974) [41] which demonstrates the interplay between public policy and third party rights in the decision where or not to grant the equitable remedy of specific performance. In this case, the defendant exchanged contracts with the claimant, agreeing to sell his matrimonial home to him. However the wife was against this move, but failed to make the husband aware as to how she was feeling. Instead she secretly put in a notice of her rights of occupation under the Matrimonial Homes Act 1967. [42] Consequently the claimants attempted to enforce the remedy of specific performance. However it was refused based on two grounds: first, the undesirability of making the husband litigate against his wife in order to secure specific performance and, second, the probability that the family would be split up if specific performance were granted, as the wife’s right of occupation would allow for the eviction of the husband and the daughter from the family alone.

Furthermore an order for specific performance may be refused if such an order would result in genuine hardship. For example In the case of Patel v Ali (1984) [43] , the husband and wife both were co-owners of a house and decided to sell their property. But, before the sale of the land was completed, the wife was diagnosed with bone cancer and the husband was declared bankrupt. The potential owners made an order for specific performance. However on appeal, the courts recognised the hardship the wife would suffer if the sale was to be completed, she had three young children, spoke very little English and had her leg amputated; so it would be difficult for her to move and adjust in a new area. So although the hardship was unrelated to the contract, it applied because it would have lead to extreme injustice if she was asked to perform her obligations given the circumstances.

Thus, there seems to be little chance of specific performance being enforced where it will result in the splitting of a family..........., as the courts recognise the suffering the wife and children would face as a consequence. The courts will also not enforce specific performance in cases of severe hardship such as Patel v Ali (1984), so both public policy and the rights of third parties play a huge part in deciding whether to grant or denial of equitable remedy.

To conclude, equitable remedies act as a very powerful tool for all individuals, however the number of cases where the gender of the claimant plays a significant importance in deciding whether or not to grant en equity relief. Women are treated with a ‘special tenderness’ because they are perceived to be weak and venerable and therefore more likely to be granted equity relief. For example, in relation to search orders; where a woman is home alone, extra female officers are required before a search can be carried out. But no such protection is offered to men, regardless of how venerable they may be. Looking at previous judgments, equity demonstrates the importance of undue influence, vulnerability, third party rights and public policy play in deciding whether or not to grant an equitable relief. All of which are saturated with gendered stereotypes and hidden assumptions. So although equitable remedies aim to help everyone, women do have an advantage over men. Furthermore many women will play up on the vulnerability factor in order to be granted with an equitable remedy.

Bibliograph

Books

D. Hayton, C. Mitchell, Commentary and Cases on the Law of Trusts and Equitable Remedies (2005) 12th edn, London: Sweet & Maxwell.

M. Wilkie et all, Blackstone’s Question and Answers on Equity and Trusts (2006) Oxford: Oxford University Press.

S. Scott-Hunt, H. Lim, Feminist Perspective on Equity and Trust (2001) Cavendish Publishing Limited.

M. Powlowski et all, Undue Influence and the Family Home (2002) Routledge Cavendish Publishing Limited.

A. Hudson, Equity and Trusts (2005) 4th edn: Routledge Cavendish Publishing Limited.

A. Hudson, Understanding Equity and Trusts (2004) 2nd edn: Routledge Cavendish Publishing Limited.

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G. Samuel, Law of obligations and legal remedies (2001) 2nd edn: Routledge Cavendish Publish.

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F. Russel, Anton Pillers after Universal Thermosensors,: has the pendulum swung too far? (1992) 7 EIPR 243

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Internet sites

http://news.bbc.co.uk/1/hi/uk/1674970.stm, 12.12.09

http://www.shl.com.hk/publications/Banking/Issue3.pdf, 18.12.09

http://sls.sagepub.com/cgi/reprint/11/2/257, 19.12.09

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R. Auchmuty, Men behaving badly: An Analysis of English Undue Influence Case: Social & Legal Studies, 2002; vol. 11: pp. 257 - 282.

B.Hacker, Proprietary restitution after impaired consent transfers: a generalised power model, C.L.J 2009, 68(2): pp 324-360, Sweet & Maxwell.

S. Ralston, Freezing orders in the court of appeal: what safeguards is the respondent entitled to expect? C.J.Q 2010, 29(1), pp 19-26, Sweet & Maxwell.

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B. Fehlberg, ‘Surety Wives and Australian Law: Atkins v National Australia Bank’ (1997) 11 Banking and Finance Law Review 423 at 423 PP 19-30.Sweet & Maxwell.

Cases

Allied Irish Bank plc v Byrne (1995) 2 FLR 325

Anton Piller K.G v Manufacturing Process (1976) Ch.55

Barclays Bank plc v O’Brian (1994) 1 AC 180

Barclays Bank v Rivett (1997) 29 HLR 893

Burris v Azandani (1995) 4 ALL ER 802

Burnett v George [1992] 1 FLR 525

Cresswell v Potter (1978) 1 WLR 255

Columbia Picture Industries Inc and Others v Robinson and Others (1986) 3 WLR 542

Clark v Clark (1999) 2FLR 498

Daly v Sidney Stock Exchange (1986) 160 CLR 371

Emanuel v Emanuel (1982) 2 ALL 342

Gibbon v Mitchell (1990) 1 WLR 1304

Hood (Lady) of Avalon v Mackinnon (1909) 1 Ch 476

K v K (1982) The Times, 25th Octorber

Kelsen v Imperial Tabacco Co Ltd (1957) 2 QB 334

Khan v Khan(1995) 2 FLR 221

Khorasandijan v Bush (1993) 3 ALL ER 669

Lloyds Bank plc v Lucken in RoyaL Bank of Scotland plc v Entridge (No.2) (1998) 4 ALL ER 705

Massey v Midland Bank plc [1995] 1 All ER 929

Midland Bank plc v Perry and another (1987) 56 P&CR 592

Pan Atlantic Insurance Co. Ltd v Pine Top insurance Co. Ltd

Project Document Co Ltd SA v KMK Securities Ltd (1982) 1 WLR 1470

Royal Bank of Scotland v Etridge (No.2) [2000] 4 All ER 449

Re Glubb (1900) 1 Ch. 354

TSB Bank v Camfield (1995)1 ALL ER 951

SCF v Masri (1985) 1 WLR 876

Universal Thermonsors v Hibben (1992) 1 WLR 840

Wroth v Tyler (1974) Ch 20

Williams & Glyn’s Bank v Boland(1981) A.C. 487

Winter v Marac Australia Ltd (1986)