Private Law Theory

ABSTRACT
Equitable remedies are often said to be ‘discretionary’ by nature. This feature is said to distinguish them from common law remedies, such as orders to pay damages and orders to pay agreed sums, available ‘as of right’. This paper explores what exactly is meant by ‘discretion’ in this context. It argues that simply describing equitable remedies as ‘discretionary’ may be misleading, for it conceals importantly distinct senses in which equitable remedies can engage discretion-like considerations. The sense in which equitable remedies are ‘discretionary’ should not be overstated, and we should be slow to generalise about the distinctiveness of equitable remedies simply on the basis that they are ‘discretionary’.

Liau, Timothy and Georgiou, Alexander, Are Equitable Remedies Discretionary? (January 15, 2025).