A Court of Equity has a discretion in highly exceptional cases to withhold from parties the legal remedy to which they would in ordinary cases be entitled as a matter of course.
An inhabitant of a burgh had obtained interdict against the magistrates to prevent them building on a particular piece of ground dedicated to the public uses of the burgh. While this process was in dependence the magistrates proceeded with the building, and completed it before interdict was granted; the building was for public purposes. The complainer then brought an action for declarator of the public right, and decree against the magistrates to remove the building; the magistrates offered to convey to the community a piece of ground in every way as suitable for public purposes in lieu of that now occupied by buildings. Held (aff. judgment of the Court of Session) that this offer was a reasonable offer, and that in respect the interest of the pursuer was as one of the community, the Court was entitled to apply the rule stated above, and to refuse the remedy asked in so far as the removal of the building was demanded.
Opinion, that if the pursuer had sued as an individual to enforce his own private right and interest in similar circumstances the Court could not have denied him his full legal remedy.
Held (rev. judgment of Court of Session) that the pursuer was entitled to decree of declarator and to his expenses in both Courts, in respect the magistrates had gone on to complete the building after the process of interdict had been brought, and had not proposed to recognise the rights of the community except in so far as they might be forced to recognise and make provision for them by the pursuer’s action.
Question whether the case of Begg v. Jack, October 26, 1875, 3 R. 35, was well decided.
Lord Chancellor Selborne, Lords O’Hagan, Blackburn, Watson, and Bramwell
 UKHL 893, 19 SLR 893
Updated: 04 July 2022; Ref: scu.637744