ZAMBIA OPEN UNIVERSITY

SCHOO OF LAW

2018 SECOND SEMESTER

NAME: ZULU KONZANI JOSEPH

COMPUTER No.: 21810738

PROGRAMME: BACHELOR OF LAW (LLB)

COURSE CODE: LL4

COURSE TITLE: LAW OF TORTS II

CONTACT LECTURER: JUDGE CHANDA

ACADEMIC YEAR: 1 st YEAR

SEMESTER: 2 (TWO)

ASSIGNMENT No.: 1

DUE DATE: 6 th SEPTEMBER 2018

POSTAL ADDRESS: ELIM SCHOOL

P.O BOX 22667,

KITWE

Email ADDRESS: jotisa2006@yahoo.com

Mobile phone: 0961705234

Question:
Making reference to authority, discuss the distinction between legal and equitable remedies.
1.0 INTRODUCTION
In many jurisdictions, legal and equitable remedies have been merged but despite this
merger, the distinction remains relevant in a number of cases as emphasised by the
following phrase: “the inherent and fundamental difference between action in law and
suits in equity cannot be ignored”, which was a statement made by the Court of Appeal,
in the case of; Jackson v Strong,1 emphasises that even states where distinction has been
abolished, like in the United States of America, where actions in law and suits in equity
have merged into one, which is called civil action, but as for remedies, there has been
little merger between law and equity. In the United States of America, it can be said that
law-equity division is fading.2 The discretion of the Court to grant equitable remedies is
what differentiates it from legal remedies, which are available, as a right to any
successful claimant. Since legal remedies are as a result of a right, it may be said that it is
for this reason why equity is always directed at the defendant’s conscience, hence it
directed at his knowledge, state of mind and motives, which are all relevant as to whether
a remedy be granted or not.3 It is a fact that remedy for wrong is given in all legal
regimes, however, it is impossible for the remedy to fully unwind the wrong, hence, there
is need for some notion of substitution, as ably stated by Lord Kames, when he said, “it
holds commonly, as expressed by in the Roman law, that factum infectum-fieri nequit (A
thing which is done cannot be undone), and when that is the case, the person injured, who
cannot be restored to his former situation must be contented with reparation in money.”4
The determination by adjudicators of disputes, of the amount to be paid, has been a
persistent problem and tedious task in every legal culture.

It must be noted that compensation is not perfect, because it operates only when breaches
have occurred and therefore, only uses deterrence to prevent further violations.
Compensation is also difficult, if the defendant is insolvent, i.e. he is unable to pay. In
some legal system, this problem of insolvency, was overcome by requiring payment in a

1
Jackson v Strong (1917) 2 K.B 193
2
Bray, L. S. (2015), The supreme Court and New Equity, P.1005; New York:Routledge
3
https//en.wikipedia. org/W.K./Equitable remedy. Retrieved on 6th September 2018
4
Home, H. (1778), Principles of Equity, P.68, Lobba, ed. London: Liberty Fund
 currency more universal than money, such as eyes, teeth and limbs.5 But through repeated
offences, it was discovered that, the careless defendant, eventually, also run short of these
forms of payments. It must be noted that compensation is of no value in compelling a
change in behavior, except for the payment, since, as long as, the defendant is willing to
pay, he is not compelled to change his offending ways, as was the case of, Lucius
Veratius,6 in the 10th century, the cruel and rich man who derived much pleasure from
going out into the streets, followed by his slave who carried a money purse and would
indiscriminately be hitting innocent passersby, and would instantly compensate his
victims, thus fully complying with his legal duties and yet not being compelled to change
his behavior. Over centuries it has been asked whether this outcome was fair and just,
indicating that legal remedy was merely a tax or tariff on wrongful behavior instead of
being preventative in nature by giving remedies that actually help to prevent or stop the
people like Lucius on his mischievous run of hitting innocent people. This is the failure
of compensation. This requires another way for courts to compel action or inaction.7

2.0 INSTITUTIONAL HISTORY OF THE REMEDIES

The distinction between legal and equitable remedies can be properly understood against
the background of the history of one of the two divisions in English common laws.
Historically, the English common law had on one hand the division of torts namely those
actionable per-se and those actionable upon damage and on the other hand, that between
law and equity. In this latter division, the comparison was more like that between
common law and Roman law, where the common law remedy for torts was pecuniary in
form and therefore, back warding looking, while the Roman law through the practice of
"omnis condemnation est pecuniaria", did provide protection of interest by granting
injunctive relief through praetorian interdicts.8 The two judicial remedies developed by
the courts from the time of King Henry VII, provided more flexible responses to

5
Rabin, L. R. (2006), Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss. pp 359,
London:Routledge
6
Stevens, H. (2005). Aulus Gellius:An Antonine Scholar and His Achievements. pp127, London: OUP
7
Langbein, H. J. (2012).The Disappearance of Civil Trial in the United States. pp522, New York: Yale
8
Martin, J. (2009). Modern Equity. pp34, London: Sweet and Maxwell
 changing social circumstances than was possible in precedent based common law. 9 Dr.
Ngandu, postulated that the history of the distinction between law and equity begins in
the developing system of law that followed the Norman Conquest of England.10 At this
time, the opportunity to be heard in the King’s Courts rather and the local courts, could
be obtained through the purchase of writs from the office of the Chancellor, but with time
and pressure from the nobility the jurisdiction of the King’s Court was diminished and
the King, began to refer petitions back to the Chancellor who would give relief as a
matter of grace or conscience in cases where relief at law was inadequate. 11 As
precedence in common law began to take a prominent role in the eighteenth century, so
did the principles of equity in law. The dissolution of the chancery as a separate court and
integrated into the High Court of Justice in the nineteenth century did not entail the end
of equity as a body of doctrines.12

In the fifteenth century, one of the distinctive features of a suit in equity in opposition to
that of an action in law where the absence of a jury and its procedure was more flexible
as well as review which was much wider when there was on appeal. Money damages, as
a relief was restricted to the law courts while equity courts could offer relief among
others, of issuing an injunction, forbidding specified acts in order to prevent further
injury, or decree specific performance, ordering obligatory performance. However, these
were only available at the discretion of the judges and that were other remedies at law
had proved inadequate. But throughout of this period money damages remained the
standard kind of relief. 13

3.0 DISTINCTIVE FEATURES OF THE REMEDIES

As it has noted earlier, legal remedies are available as of right, meaning that if the
claimant proves his case he will obtained the remedy as opposed to equitable remedies

9
Maitland, F. W. (1908). The Constitutional History of England. pp221-226, London:CUP
10
Ngandu, F. (2009). Legal Process Module. Lusaka:ZAOU
11
Plucknet, F. T. (1956). A Concise History of the Common Law. pp675, London:CUP
12
Burrows, A. (2002). We Do This at Common Law But that is Equity. pp22, London:OUP
13
Maitland, F. W. (1908). Lectures in England on Equity. London:CUP
 which are discretionary, in which case the court could decline to give them if it is
unreasonable to do so.14

Both types of remedies are intended to compensate for the harm done or the harm being
threatened respectively. Legal remedies are mainly damages, which simply put, are
money compensation, which is defined by Winfield as, “the sum of money which will put
the party who has been injured or who has suffered, in the same position as he would
have been in, if he had not sustained the wrong for which he is now getting his
compensation or reparation.15

3.1 Remedy of Self-Help

Before any going further in the discussion of the legal remedies, it is important to
appreciate there are times the law allows the individual who is a victim of a tort to
take it upon themselves to act to remedy the situation without recourse to the
courts. This action is called self-help and it is a legal remedy which is an
equivalent of self-defence and defence of necessity in criminal law. This is well
illustrated in the English leading case of; Tuberville v Savage16, where the
claimant apparently threatened the defendant by putting his hand on the sword as
though to draw it, but negated the threat by saying that he would have done
something about the insult the defendant had uttered to him had it not been assize
time, the defendant argued that he was exercising his right to self-help by self-
defence in drawing his sword and getting his retaliation in first. The argument
however, failed on the facts, as the defendant was taken not to be under threat.
The defence of necessity is demonstrated in the case of; Cope v Sharpe, 17 where
the courts determined in favour of the defendant who trespassed on the claimant’s
land to prevent major harm by extinguishing a fire before it could spread.
Although the law does allow self-help as a legal remedy, it does not encourage it
as there is always a possible danger that a situation may get out of control as

14
Ibid, n10
15
Winfield and Jolowicz. (1937). Torts. pp38, London:Sweet and Maxwell
16
Tuberville v Savage(1669) 1 Mod Rep 3
17
Cope v Sharpe(1912) 1 KB 496
 evidenced in the case of; Tuberville and Savage. In the tort of trespass, the law
may permit a land owner to use reasonable force to deter or remove a trespasser
as in permitting the chattel owner to recover it for his entitled possession of the
same. This is also true, for removal of material which trespassing as well as
detaining the same as security for compensation for damages caused.

3.2 Legal Remedies – Damages

Damages is a legal term for money compensation and meant for the claimant,
whilst damage is the harm suffered by the claimant.18 As stated earlier, its aim is
put the claimant in the position they would have been in if the tort had not been
committed. It is worth noting that damages can be awarded without the claimant
proving any damage as is the case of Battery. Damages are categorised into two
types namely, compensatory and non-compensatory, this is because of the fact
that although representing substantial compensation to the victim for the harm
suffered but damages have other functions. Damages can be compensatory
damages as well as non-compensatory damages. Damages ought to represent
direct and actual compensation.

3.2.1 Non-Compensatory Damages

This award of damages is non-compensatory in intention and these fall in
the following categories:

(a) Contemptuous damages

This award of damages is usually a very minute amount of money and
in English common law, it is the lowest coin in use at the time of the
award, which would be One British Penny. The Court recognizes even
if there was a breach of law which warrants an action, the claimant
should not have brought the case to court. Such an award was given in
the case of; Reynold v Times Newspaper ltd,19 in which the
defendant libels the claimant, the court found that in this case, “it was

18
Greene, B. (2017). Tort Law. pp200, London:Routledge
19
Reynold v Times Newspaper Ltd(1998) 3 WLR 862
 not possible so to find and to award no damages”, so the trial judge
gave a damage award of one penny and the Court of Appeal said this
was correct.
(b) Nominal Damages
These damages are usually awarded for torts which are actionable per
se, which require no proof of damage on the part of the claimant
except that his rights are infringed e.g. trespass to land. The sum
awarded is very small. An example is in the case of; Constantine v
Imperial Hotels Ltd,20 where the defendants were guilty of breach of
their duty, when they unjustifiably refused accommodation to the
claimant, the well-known West Indies Cricketer. Although he was
accommodated elsewhere, he was awarded nominal damages of five
guineas (equivalent of £100 presently).
(c) Aggravated Damages
These are damages awarded when the claimant has been caused mental
distress and injured feelings by the defendant’s behavior in committing
the tort. Many a time these damages cannot be quantified in money
terms.21 These damages are mainly for intentional torts. In Rowlands v
Chief Constable of Merseyside,22 the court of Appeal awarded
aggravated damage of £7,000 to the claimant who was wrongfully
arrested in a humiliating manner in front of her children.
(d) Exemplary Damages
The punishment of the tortfeasor is the purpose of these damages. The
House of Lords in the case of; Rookes v Barnard,23 ruled that such
damages could only be awarded if there was oppressive,
unconstitutional action by Government servants abusing their power.
However, if these damages can be awarded where a defendant

20
Constantine v Imperial Hotels Ltd(1944) KB 693
21
Winfield and Jolowicz. (1937). Torts. pp940, London:Sweet and Maxwell
22
Rowlands v Chief Constable of Merseyside(2006) EWCA Civ 1773
23
Rookes v Barnard(1964) AC 1027
 committed a tort and calculated they would make a profit from it; as in
the case of; Cassel v Broone.24

3.2.2 Compensatory Damages

These types of damages have a purpose of compensating the claimant for

the loss they have incurred. Although designed to put that claimant in their
original state before the tort, this is not attainable especially when personal
injuries are suffered by the claimant. In compensatory damages, a line
must be drawn between the cases where the loss is a money one (i.e. loss
of earnings after an accident, cost of repair or loss of profit) and those
involving physical harm (i.e. personal injury, death) or moral harm (i.e.
loss of reputation or infringement of privacy).25 The damages are
categorized as general damages and special damages.

(a) General Damages

These are damages which cannot be measured accurately in terms of
money; such as the damages for pain, suffering and loss of amenity as
well as loss of future earnings. Loss of amenity is the reduction in the
capacity to enjoy life. The award is normally higher where there is a
permanent loss of mobility or limb, as in the case of; Housecroft v
Burnett.26
(b) Special Damages
These are damages which can be accurately measured. The following
can follow in the category:
- The damage to land and buildings, where the claimant is entitled to
at least the diminutive value of the same, the damage being
assessed at the time of the tort.

24
Cassell v Broome(1972) AC 1027
25
Supra, n10
26
Housecroft v Burnett(1973) AC 1201
 - The damage to the chattel, although the courts have recognized the
ton of use of the chattel and hence it is included in the damages.

3.3 Equitable Remedies – Injunctions

3.3.1 Injunctions

In an ordinary understanding equity may be considered as natural justice,

meaning doing right by another. In law it is a body of rules or principles
that form an appendage to the general rules of laws. So, equity is the
correction of that wherein the law, by reason of its universality, is
deficient. Snell, speaking of English equity practice, said that “it is
impossible to enumerate all the cases in which the remedy by way of
injunction is available.”27 An injunction is a court order stopping the
defendant from doing something or ordering the same to do a particular
act. It is an equitable remedy and given at the discretion of the court and it
will not be granted if legal remedies in terms of damages are adequate.
The preliminary distinction of injunction from damages, is that the latter is
an award given for an injury already caused, whilst the former is more
preventative, making the adage “prevention is better than cure” applicable
to equitable remedy of injunction. There are different types of injunctions
and the first distinction is as regards the stage in the proceedings that they
operate. Injunctions are generally sought against such torts as nuisance,
continuing or repeated trespass, passing off or interference with contract.28

(a) Quia Timet

Sometimes injunctions can be very unusual remedy as is this one. This
injunction is granted to the claimant to stop a tort from being
committed. The application is in a case of the defendant threatening to
go to the claimant’s land and dig a ditch. The land owner has a prima

27
Snell, J. (1960). Snell's Principles of Equity. pp2, London:Bakers
28
Winfield and Jolowicz. (1937). Torts. pp998, London:Sweet and Maxwell
 facie entitlement to this injunction to restrain trespass by the defendant
so as to prevent him from digging a hole, reference is made to the case
of; Patel v W.H. Smith.29
(b) Interim (Interlocutory)
This is distinguished from a perpetual injunction which is given at the
conclusion of the trial. To the contrary an interim injunction is issued
before the start of the trial. Care is taken by the courts in issuing out
this injunction, because of the danger of action being taken on
inadequate evidence as the full trial has not taken place yet, but
consideration is also given that the claimant may be so damaged by
what happens in the time before the full trial. Guidelines to be used by
the courts are given in the case of; American Cyanamid v Ethicon,30
the House of Lord gave the following steps to be considered before the
interim injunction is given: firstly, the tried issue must be grave;
secondly, courts determine that damages are an inadequate remedy;
lastly, effect of the injunction on the defendant.
(c) Prohibitory
This is an order to stop the defendant from doing a particular act. As
stopping the commission of a nuisance as in the case of; Dennis v
Ministry of Defence,31 claimant claimed the noise from a RAF base
was a nuisance. The court refused to grant prohibitory injunction to
stop the flying of RAF planes, as public benefit outweighed private
rights. Damages were awarded instead.
(d) Mandatory
This is a court order that the defendant must do something, it is used if
the tort is being committed or has already been committed. These
injunctions are problematic in monitoring and therefore courts are

29
Patel v W.H. Smith(Eziot)(1987) 1 WLR 853
30
American Cyanamid v Ethicon(1973) AC 396
31
Dennis v MOD(2003) EWHC 793(QB)
 reluctant to grant them, as in the case of; A.G v Staffordshire CC,32
where the difficult of policing the injunction is given as a reason for
refusal of the same. In the case of; Kelsen v Imperial Tobacco Co.,33
the defendant was ordered to remove an advertising sign they has put
over the claimant’s land.

3.3.2 Accounting for Profits

This is an equitable remedy ordering an inquiry into the defendant’s
handling of money or property to ascertain the defendant’s gains so that
they may be paid equitably to the claimant. This is used mainly where a
fidudiciary relationship exists between parties, and the accounts are so
complex that legal remedy requiring a fixed sum is impractical.

3.3.3 Constructive Trusts

This is an equitable remedy used to set aside wrongful ownership or unjust

encroachment. In this remedy, the defendant being a construct trustee must
surrender the constructive trust property to the claimant on such condition
as the court will direct.

3.3.4 Equitable Lien

Similar to constructive trust, except that instead of giving the claimant
title, an equitable lien will give him security interest in the property in
question i.e. the foreclosure so as to allow the claimant to cash out.

3.3.5 Specific Performance

This equitable remedy, compels the defendant to perform his obligation
under a contract.

32
AG v Staffordshire CC(1905) 1 Ch 336
33
Kelsen v Imperial Tobacco Co(1996) AC 1226
3.4 CONCLUSION
The distinction between legal and equitable remedies is firstly that the former is
as a right while the latter is at the discretion of the court. Equity relief is applied
for where legal remedies have been inadequate. Equitable remedies compel the
defendant to act or not to act whilst the legal remedies are compensatory in
nature. Although it must be noted that there, some legal remedies that compel
action such as mandamus, which is used to order a public official to perform a
ministerial duty. Another is habeas corpus, which is an order to officials to release
the body of a person in custody. A third is replevin which used to force the
defendant to return certain property to the claimant. Legal remedies apply to
address the harm caused by a committed tort whilst equitable relief seeks to
prevent the tort from being committed or continuing to be committed, hence it is
preventative in nature. Equitable relief also is unique in the way it may be applied
in legal process or trial, the relief may be applied before the full trial commences
whilst damages are awarded after the full trial is completed.
 REFERENCES

1. Jackson v Strong (1917) 2 K.B 193

2. Bray, L. S. (2015), The supreme Court and New Equity, P.1005; New York:Routledge
3. https//en.wikipedia. org/W.K./Equitable remedy. Retrieved on 6th September 2018
4. Home, H. (1778), Principles of Equity, P.68, Lobba, ed. London: Liberty Fund

5. Rabin, L. R. (2006), Pain and Suffering and Beyond: Some Thoughts on Recovery for
Intangible Loss. pp 359, London:Routledge
6. Stevens, H. (2005). Aulus Gellius: An Antonine Scholar and His Achievements. pp127,
London: OUP
7. Langbein, H. J. (2012).The Disappearance of Civil Trial in the United States. pp522,
New York: Yale
8. Martin, J. (2009). Modern Equity. pp34, London: Sweet and Maxwell

9. Maitland, F. W. (1908). The Constitutional History of England. pp221-226, London:CUP

10. Ngandu, F. (2009). Legal Process Module. Lusaka:ZAOU
11. Plucknet, F. T. (1956). A Concise History of the Common Law. pp675, London:CUP
12. Burrows, A. (2002). We Do This at Common Law But That is Equity. pp22, London:OUP
13. Maitland, F. W. (1908). Lectures in England on Equity. London:CUP

14. Ibid, n10

15. Winfield and Jolowicz. (1937). Torts. pp38, London:Sweet and Maxwell
16. Tuberville v Savage(1669) 1 Mod Rep 3
17. Cope v Sharpe(1912) 1 KB 496

18. Greene, B. (2017). Tort Law. pp200, London:Routledge

19. Reynold v Times Newspaper Ltd(1998) 3 WLR 862

20. Constantine v Imperial Hotels Ltd(1944) KB 693

21. Winfield and Jolowicz. (1937). Torts. pp940, London:Sweet and Maxwell
22. Rowlands v Chief Constable of Merseyside(2006) EWCA Civ 1773
23. Rookes v Barnard(1964) AC 1027
24. Cassell v Broome(1972) AC 1027
25. Supra, n10
26. Housecroft v Burnett(1973) AC 1201

27. Snell, J. (1960). Snell's Principles of Equity. pp2, London:Bakers

28. Winfield and Jolowicz. (1937). Torts. pp998, London:Sweet and Maxwell

29. Patel v W.H. Smith(Eziot)(1987) 1 WLR 853

30. American Cyanamid v Ethicon(1973) AC 396
31. Dennis v MOD(2003) EWHC 793(QB)

32. AG v Staffordshire CC(1905) 1 Ch 336

33. Kelsen v Imperial Tobacco Co(1996) AC 1226