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| Question | Answer |
| What is Equity? - Equity is to be compared with the common law. - Equity is the body of law that the King and Chancellor would exercise when common law would not help. | Three Meanings of Common Law? - It is a legal tradition (common law as opposed to the civil law [those law makes through Roman Law, but common law is mainly in the old common weath e.g. Australia, Canada exc Qubet, US exc Louisana]). - 'Judge made law' - Common Law as a Juridiction of the Courts |
| How Does the Common Law Work? - There was a writ system. You had to fit your facts to a case that had already occured. - There was a limited number of claims and a limited number of remedies. | What happens if your claim didn't fit into the facts or you wanted a different remedy? Common law gives you damages. Equity gives you specific performance. (The king, through the chancery wound grant these equitable remedies.) However, this was done on a basis of discretion. |
| Equity isn't all about fairness. CC v AB - C affair with Ds wife. D wanted to sell the story. C sought an injunction to prevent. D: 'this is discretionary'. | Although granting injunctions are discretion, we still require consistency in principle. Levy MJ: 'With such a wide range of differing views in society one must guard against allowing legal judgements to be coloured by personal attitudes... |
| 'The outcome should not be based on the length of the chancellor's foot' | Contractual Equitable Remedies that mitigate the harshness of common law: |
| - Injunction (Mareva Compania Naveiera) The Mareva Injunction Freezing Assets | - Rescission: At common law the contract is either void or valid. |
| - Account of Profits: 'Im not worried about the loss that I've suffered, but the D has made a profit out of the wrong he done to me' | AG v Blake Spy for British but was also for Soviets. Wrote a book. This was breach of contract. Info was confidential, gov couldn't say they lost money. HOL considered whether this remedy could apply to a breach of contract claim (which is a common law wrong). |
| Nicholls LJ: ‘Considered as a matter of principle, it is difficult to see why equity required the wrongdoer to account for all his profits in these cases, whereas the common law's response was to require a wrongdoer merely to pay a reasonable fee for use of another's land or goods. In all these cases rights of property were infringed. This difference in remedial response appears to have arisen simply as an accident of history.’ | HOL in Blake said the equitable remedy of account of profits could apply to the common law wrong of breach of contract. This was ultimately because of the Judicature Acts. |
| 'Fusion' and The Judicature Acts | Judicature: problems with parallel systems...the two didn't recognise one another |
| Judicature Commission, First Report of the Commissioners (HMSO, 1869) 6: ‘the evils of this double system of Judicature, and the confusion and conflict of jurisdiction to which it has led’. | Judicature: 'The courts system' |
| Judicature Acts | Lord Selborne LC: ‘I content myself with saying that those rights and remedies which belong to the system of law and jurisprudence under which we actually live, and which are consistent with each other should be equally recognized, and effect given to them, in all branches of the Court.’ |
| The idea was to unify the court system and do away with multiple jurisdictions. | But would this fuse the two courts and the principles or should there be one set of principles and rid of these individual procedures? |
| They intended procedural fusion. They would be administered concurrently. Both courts would work in harmony, but the principles would be kept separate. | Attorney General Sir John Duke Coleridge: The Bill was not one for the fusion of Law and Equity… The defect of our legal system was, not that Law and Equity existed, but that if a man went for relief to a Court of Law, and an equitable claim or an equitable defence arose, he must go to some other Court and begin afresh. Law and Equity, therefore, would remain if the Bill passed, but they would be administered concurrently, and no one would be sent to get in one Court the relief which another Court had refused to give. |
| Holdsworth: ‘Equity’, 159: ‘both the principles of equity evolved by the Chancellors of the eighteenth and nineteenth centuries, and the new principles and rules introduced by the legislature, have been developed by the Chancellors and judges and other lawyers with no break in their historical continuity.’ | Now that we have one court administering both common law and equity, albeit in different divisions (QB: CL, CD: E) shouldn't we iron out inconsistencies? |
| Burrows argues in favour of substantive fusion of principles in certain examples. | 4: ‘There are numerous instances of inconsistencies between common law and equity; and to support fusion seems self-evident, resting, as it does, on not being slaves to history and on recognizing the importance of coherence in the law and of “like cases being treated alike”.’ |
| There are some areas where there are serious inconsistencies. And there are other places where there isn't good reason for the division. | This can rise to a problem of conflict. Senior Courts Act 1981, s49: 49 Concurrent administration of law and equity… (1) Subject to the provisions of this or any other Act, every court exercising jurisdiction in England or Wales in any civil cause or matter shall continue to administer law and equity on the basis that, wherever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. |
| Senior Courts Act is sometimes referred to as the Supreme Courts Act. | Ash Burner: 'Procedural Fusion rather than Substantial Fusion' ...All we've done if bring the courts into one system, we are not mixing up or fusing the two. |
| ‘The two streams of jurisdiction, though they run in the same channel, run side by side, and do not mingle their waters.’ Principles of Equity, 2nd edn, 18. | Lord Diplock at 924–925: ‘. . . if by the ‘rule of equity’ is meant the body of substantive and adjectival law that, prior to 1875, was administered by the Court of Chancery but not by the courts of common law, to speak of the rules of equity as being part of the law of England in 1977 is about as meaningful as to speak of the Statutes of Uses or of Quia Emptores. . . . |
| …but to perpetuate a dichotomy between rules of equity and rules of common law which it was a major purpose of the Supreme Court of Judicature Act 1873 to do away with, is, in my view conducive to erroneous conclusions as to the ways in which the law of England has developed in the last hundred years.’ | The fact we have them under one roof is a reason for disregarding the inconsistencies in the two. |
| Lord Browne-Wilkinson at 371: ‘More than 100 years has elapsed since the fusion of the administration of law and equity. The reality of the matter is that, in 1993, English Law has one single law of property made up of legal and equitable interests.’ Tinsley v Milligan | Tins v Mill: If you are to prove title in circumstances involving illegality what approach do you take? |
| At Common Law: If you need to mention the illegality then you cannot. | At Equity: If there is anything illegal in this case, you cannot, as it will stultify the law. |
| Lord Browne-Wilkinson adopted a Fusion Approach, he adopted for Equity the Common Law test. | ‘More than 100 years has elapsed since the fusion of the administration of law and equity. The reality of the matter is that, in 1993, English Law has one single law of property made up of legal and equitable interests.’ |
| The existence of fusion is a reason to adopt a consistent approach whether dealing with common law rights or equitable acts. | Since the Judicature Acts? To what extent is it appropriate for judges to continue to be creative? |
| Yves v Yves - A women lied to by partner, he said he wouldn't put her name on the title deed but had good reasons to do so. Did she have a right to the house? | On traditional principles she didn't have a right. But Lord Denning granted her a right. |
| Eves v Eves, 1341: ‘a few years ago even equity would not have helped [the plaintiff]. But things have altered now. Equity is not past the age of child bearing. One of her latest progeny is a constructive trust of a new model. Lord Diplock brought it into the world [in an earlier case] and we have nourished it’ | Bagnall J: ‘I am convinced that in determining rights, particularly property rights, the only justice that can be attained by mortals, who are fallible and are not omniscient, is justice according to law; the justice which flows from the application of sure and settled principles to proved or admitted facts. So in the field of equity the length of the Chancellor's foot has been measured or is capable of measurement. This does not mean that equity is past childbearing; simply that its progeny must be legitimate — by precedent out of principle’ Cowcher v Cowcher |
| Cowcher v Cowcher s27 Bagnall LJ courts should be careful about how they approach rights in new cases | This reasoning is illustrated by Nourse LJ in Re Polly Neck |
| Re Polly Neck: A company owed property in Cyprus, it was taken in invasion, D now own. C want back. | LJ Nourse: Said they couldn't help them, you cannot grant a proprietary right A who previously did not have one, without taking away from B. This is not something that can be done with legislative intervention. |
| Lord Neuberger: Is it appropriate for equity to still be creative? | Para 45: ‘The Judicature Act did not introduce a statutory bar on invention. Nor have its successors. The jurisdiction still exists. But simply because the power to do something exists, we should not draw the conclusion that we should exercise that power. Equity can therefore adapt and refine with little difficulty in appropriate circumstances and insofar as principle justifies such developments. But invention is a road which should not, as an almost absolute rule, be travelled even though the road lies open.’ |
| Reform required in Cohabitation: ‘An example of Parliament failing to grasp the nettle, at least so far, and the courts stepping in is in the field of the rights to the home of unmarried co-habitees’ Lord Neuberger Speech, para 40 | Lord Neuberger says one reason why the judges should be more creative is if there is any area of law where parliament should legislate but they fail to do so. E.g. The above HOL addressed the lack of leg in Stack v Dowden 2007 Jones v Kernott 2011 lady hale continues to be creative in this area of law. |
| 'Maxims' of Equity (Sayings, statements of principle, catchphrases) an important way of grounding the principles. | Rouchefoucaud 1871 - He argued there was a formality principle that you need written evidence for setting up a trust for land. |
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