Lloyd's Maritime and Commercial Law Quarterly

Book review

David Capper

School of Law, Queen’s University Belfast
EQUITY TODAY. Edited by Ben McFarlane, Professor of English Law, University of Oxford, and Steven Elliott KC, One Essex Court Chambers. Hart, Oxford (2023) li and 401 pp plus 8 pp Index. Hardback. £100.00.
When the reviewer was a law student, and even when he taught Equity in his first, part-time, teaching position, there was always a sense in which Equity was not truly a “subject” quite like the others in the curriculum. The view was held by some that, were it not for the stipulations of professional bodies, it might not be taught as a subject in its own right. For others the need to teach Trusts justified Equity’s place in the curriculum. For others, as well as for those who realised that Trusts had to be covered, there was a need to study equitable doctrines and remedies, and a curricular subject called “Equity” was the best place to locate that. Even so, Equity as a subject was not quite the same as Contract, Tort, Land Law, Criminal Law or Constitutional Law.
This admirable collection of essays by distinguished scholars and practitioners attempts to do two things. First, it addresses the question, 150 years after the Judicature Act 1873, whether it is meaningful to think or speak of Equity as different from Common Law. The hardback edition of the book contains a photograph of the confluence of the Rhone and Saône rivers, the fluvial metaphor used by Professor Ashburner in his Principles of Equity (1902) to describe the effect of fusing the administration of Common Law and Equity in a unified High Court of Justice. The unanimous view of all contributors appears to be that an understanding of the historical contexts in which equitable doctrines developed, the functions they are designed to serve, and the legal relations in which they operate, are invaluable in the application of these principles to disputes that come before the courts. One caveat must be added: there can be no justification for different common law and equitable rules dealing with essentially the same subject matter. Professor Andrew Burrows (as he then was) strongly criticised any such tendency in his inaugural lecture at Oxford University (“We Do This At Common Law But That in Equity” (2002) 22 OJLS 1) but it is not likely he would find much to disapprove of in this collection from his current judicial vantage point.
There are 20 essays in this collection and this review cannot do justice to all of them. It will concentrate on those essays which, in the reviewer’s mind, most clearly explained what can be learned from continuing to see Equity as having distinctive qualities. Professor Ben McFarlane opens the collection with an essay on the nature of the trust. McFarlane sees the beneficiary of a trust as having an interest in the estate or right which the trustee holds, rather than in the property itself. This view has two principal consequences. First, there can be a trust over something that is not of itself property, eg, data and cryptocurrency. Second, the common law rule that the trustee is the owner of the property is not modified.


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