There is a concept in law known as equity and the courts can sometimes use equitable principles of discretion to assist in civil cases. It is important to note that equity, which is a historical common law doctrine associated with fairness, does not apply to all cases, but for obvious reasons, it can be very helpful in a variety of civil law claims.
For a Judge to help out with a case by using equitable principles where available, it is common sense that he or she is only likely to do so where the person asking for it has played fair. In fact, there is a longstanding legal principle applying to equity, as follows :-
“he who comes to equity must have clean hands”
The inference from this is crystal clear.
A recent case clearly demonstrates how this works in practice.
In the Court of Appeal case of Jameer v Paratus AMC the case involved a mortgage possession action.
In summary, as is customary in these cases, the borrower was given every opportunity to try and avoid the property being repossessed by the mortgage lender. Over a period of several years, the case progressed to the point where a suspended possession order was made. This is in effect, the “last chance saloon”, an Order for possession is on record and the borrower needs to comply with payment terms or otherwise the lender can proceed without further court orders.
In this case, the borrower still was unable to comply and a possession warrant was ordered. The borrower then applied for this to be suspended on the basis that her financial situation was improving. The judge refused that application and the case ultimately reached the Court of appeal.
The issue in the Court of appeal was whether the lower Court should have exercised discretion in the borrower’s favour ? Her problem was that she claimed that her financial situation had improved but had failed to provide sufficient or accurate information to the court.
The point about this case is that the borrower had made obvious omissions in the documents she presented to the court and therefore was not entitled to any further discretionary help. In effect, she had not come to court “with clean hands”.
The upshot of this case is that it does not pay, whatever the underlying motives, to adopt a “cat and mouse approach” to court proceedings. This is a common situation in my experience and parties to litigation should remember that equity is often an important shield against an adverse ruling, so it makes sense to be completely open and honest with the court at all times.
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.