While waiting today for a courier delivery (which agonizingly I appear to have missed by only minutes yesterday morning) I have thought to divert myself from the peril by reading “PRE-EMPTIVE COMMERCIAL REMEDIES” recently (or about to be) published through LexisNexis® by my longstanding friend Michael G. Tweedie B.A. (Hons), M.A., M. Litt., M.L.S., LL.B.

Immediately upon reading the Introduction I noted with interest the footnote reference to Blackstone.

See William Blackstone, Commentaries on the Laws of England, 1st ed. (Oxford: Clarendon Press, 1768) vol. III, p. 2: “The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited.”

By coincidence that stimulating constitutional feature was soon followed with detail about so-called “discretionary” remedies which pointedly override the so-called “strict rules”.  My introduction in law school to discretionary remedies was through reading certain of the case reports of Lord Denning, Master of the Rolls, wherein he distinguished himself by dismissing absurdities with reasonableness.  He became known as “the people’s judge”.

It has become something of a mantra to describe these remedies as “discretionary”. This refers to a judicial, and not a personal, discretion, which is guided by established principles as opposed to strict rules. These equitable principles, as they affect the orders which form subject matter of this work, are often expressed as (but are not limited to) certain of the maxims of equity. Generally, these assert that:

• Equity follows the law (that the law prevails where the equities are equally balanced),
• Equity regards as done that which ought to have been done (it imputes an intention to fulfil an obligation),
• He who seeks equity must do equity to get his decree,
• He who seeks equity must come to equity with clean hands in the transaction,
• Equity aids the vigilant (the laches doctrine),
  that equity acts only in personam and never in rem (the key to understanding the equitable jurisdiction – that it never affects anything but rather binds individuals), and,
• equity will not suffer a wrong without a remedy (the power to fashion a creative but practical remedy).

The pre-emptive feature of the remedy serves or intends “to preempt or forestall something, especially to prevent attack by disabling the enemy” . It is usually accompanied by the very persuasive component of equity which, in addition to providing the ingredient of value or worth, is more popularly associated with a host of laudable basics of justice including
“fairness, fair-mindedness, justness, justice, fair play, impartiality, even-handedness, lack of discrimination, egalitarianism, honesty, integrity, rightness, rightfulness, rectitude, uprightness, righteousness, properness, decency, goodness, honorableness, scrupulousness, conscientiousness, reasonableness, sensibleness, disinterest,  disinterestedness, neutrality. objectivity, balance and open-mindedness”.

From my memory the concept of equity was first introduced in the Court of Chancery.

Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or “inequity”) of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants (and I believe formerly, married women).

Yet as commendable as those characteristics may at first appear, I note further that,

Denning was a conservative Christian who remained popular with morally conservative Britons who were dismayed at the postwar rise in crime and who, like him, believed that the duties of the individual were being forgotten in the clamour for rights. He had a more punitive than redemptive view of criminal justice, as a result of which he was a vocal supporter of corporal and capital punishment.

This inclination is to me suspiciously close to what some others have advanced as a political platform and agenda.  Indeed so persuasive was Denning that,

Denning became one of the highest profile judges in England. He was known for his bold judgments running counter to the law at the time. During his 38-year career as a judge, he made large changes to the common law, particularly while in the Court of Appeal, and although some of his decisions were overturned by the House of Lords several of them were confirmed by Parliament which passed statutes in line with his judgments.

As a result equity is now (in the minds of some at least) viewed as a mechanism to inflate highly personal distortions and influence in a manner other than I for one would have imagined probable.  Take for example the current “woke” movement which, if I understand it correctly (and I confess I am uncertain I do) is largely aligned against what might otherwise be labeled “Far left” propaganda.

As an adjective woke was first recorded in African American usage in the late 19th century, meaning awake, not asleep. The contemporarymeaning arose in the US during the 1960s, with the idea of being well informed and aware of what was going on in society. In the 21st century woke was popularized by association with the Black Lives Matter movement and by the lyrics of the 2008 song “Master Teacher” by Erykah Badu, in which the words “I stay woke” serve as a refrain. More recently the word has been used in a more derogatory way, by people who oppose progressive reforms or feel that their advocates are unrealistic or interfering.

Once again the ambivalence of these words has led to uncertainty.  It also points to the continuing strength of argument and analysis, not unlike some of the current applications being made to historic constitutional theses in the United States of America where for example the universality of the application of law is being toppled by the putative freedom (immunity) of a president for acts done in office. This, as I am so often wont to observe in more comic circumstances, is an “inductive leap” of the first order. Nonetheless it has admitted to fulsome judicial debate. And while it is easy to suggest the language of dissension follows existing political boundaries my experience has been that, once on the bench, the judiciary responds more openly and less restrictively to legal fractionation.

Perhaps for the moment it is best to conclude with a mystical bit of legal jargon,

“It is almost axiomatic that where there is a right, there must be a remedy to protect that right”

And, since the following concludes the Introduction of Tweedie’s book as well as concluding my present examination of the entirety, this too may be notable and spiriting,

Of course, it is speculation, but it may be that these pre-judgment remedies, which effectively foreclose dishonest conveyances and the eradication of material evidence, may force a defendant now restricted to orthodox behaviour to consider immediate settlement in a more focused manner.