1. Common Law and Equity Emergence and Impact of Equity

2. Development of Common law Started with William the Conqueror in 1066 Prior to 1066 local courts across the country settled disputes but no standard or common rules used William wanted to gain control of whole country so set up the Curia Regis (King’s Court) and appointed judges to settle disputes brought to them by the nobility

3. Case law and judicial precedent These judges travelled round the country to settle large disputes They decided cases based on local customs or old laws from the areas they visited William brought all these customs and laws together and carried out a sifting process They formed the basis of the common law – a system of law common to the whole country Common law was fully developed by 1250

4. Problems with Common Law By the end of the 13 th century no new writs were being issued so many people couldn’t even start their case off so were unable to receive justice The only remedy offered by common law was damages which, in many cases, was inappropriate

5. Emergence and Impact of Equity Equity began to develop when dissatisfied litigants began to petition the King who was the “fountain of justice”. The King began to pass petitions to his Chancellor as he did not want to spend time considering them. The Chancellor was the “Keeper of King’s” Conscience”. The role of the Chancery grew & soon became the Court of Chancery. The law that developed was known as “Equity”.

6. Emergence and Impact of Equity The Chancellor’s priority was to try to discover the truth – a matter which seemed unimportant to the common law. He was concerned with being fair an equitable. The Chancellor would question the litigants in person & a verdict based on his own moral view of the case in question. The court could enforce rights which were not recognised by the common law, which was bound by precedent.

7. Emergence and Impact of Equity The Chancellor began to think up new remedies and in an “ad hoc” way to suit each litigant. These equitable remedies are still in use today they include; An Injunction Specific Performance Recission Rectification

8. Emergence and Impact of Equity Task 1 Define the following terms; Injunction Specific Performance Recission Rectification

9. The Equitable Maxims It is important to remember that equitable rights and remedies are discretionary. Common law remedies are “of right”. Equitable remedies cannot be demanded. The court will consider a number of factors when deciding if they will be granted; The behaviour of the parties Question of fairness & justice. The Chancellor developed the equitable maxims to ensure fairness and justice. Which are still used today.

10. The Equitable Maxims “He who seeks Equity must do Equity”. Anyone who seeks an equitable remedy must be prepared to act towards his or her opponent. In Chappell v Times Newspapers Ltd (1975) Newspaper employees who had been threatened with dismissal unless they stopped their strike action applied for an injunction to prevent the threat from being carried out. The court held that in order for the remedy to be granted the workers had to withdraw their strike action. They refused to do so & the injunction was refused.

11. The Equitable Maxims “Delay Defeats Equity” Unreasonable delay will prevent a plaintiff from making a claim. In Leaf v International Galleries (1950) Leaf brought an action claiming recission for a painting sold to him by the gallery 5 years ago. The court held that the delay had been too long.

12. The Equitable Maxims “He who comes to Equity must come with clean hands”. Claimants who have themselves been in the wrong will not be granted an equitable remedy. In D & C Builders v Rees (1966) the defendant claimed equitable estoppel. The builders had carried out work for the Rees’. They were in financial difficulty (which the Rees’ knew) and were persuaded to accepted a lower sum in the settlement of debt. Lord Denning held the Rees’ had taken advantage of the builders’ financial problem.

13. The Emergence & Impact of Equity The Court of Chancery became extremely popular due to its flexibility & more appropriate remedies. This began to cause some resentment amongst common law lawyers. They argued that the decisions of the Court were inconsistent. A 17 th century jurists later wrote that: “Equity is a roguish thing – it varies with the length of the Chancellor’s foot” John Sheldon.

14. Rivalry Between the Courts The common law lawyers resented the way in which Equity restricted their jurisdiction. Matters came to a head in 1615 in the Earl of Oxford’s Case. This was a dispute over land at Covent Garden. The case brought common law & equity into open conflict and resulted in James I ruling that: “Where Common Law & Equity are in conflict, Equity should prevail”.

15. Rivalry between the Courts The rivalry continued for years. Nevertheless the Court of Chancery began to develop a body of principles instead of “ad hoc” decisions. Equity evolved to fill in gaps left by the common law and developed its own body of case law. The intention being not to replace common law, but to supplement it. However, by the 19 th century Equity had become as rigid as the common law and suffered problems with delay and costs.

16. Problems with Equity From the mid to late 1600’s until Charles Dickens’ era in the mid to late 1800’s the word Chancery became inter-linked with Expense Delay and Despair In his novel Bleak House, Charles Dickens wrote: “This is the Court of Chancery…..which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give…the warning “Suffer any wrong that can be done you, rather than come here!””. Bleak House (1853).

17. The Judicature Act 1873 & 1875 Some attempts were made to reform the system, however complete change did not occur until the Judicature Act 1873 & 1875. What effect did the Judicature Act 1873 & 1875 upon the development of Common Law and Equity.

18. The Judicature Acts 1873 & 1875 It is important to remember that the Judicature Acts did not fuse common law and equity, only administration. Today there is still a body of Equity, which is distinct from common law rules, and there is evidence that Equity is still “filling in the gaps”. In Coucher v Coucher (1972) it was stated: “Equity is not past child bearing age but its progeny must be legitimate, principle out of precedent”.

19. Equity Today Equity is still developing new remedies and filling in gaps. Examples of Equity still coming to the rescue in the 20 th century. The Anton Pillar Order (search order) This is a court Order, made ex parte (granted after hearing one side only), and it’s aim is to prevent the defendant from removing, concealing or destroying evidence that is in the form of documents or movable property. Failure to comply with such an Order will give rise to contempt of court. Orders are only granted where it can be shown that there is a grave danger of vital evidence being destroyed or removed. The order permits a claimant to enter the defendant’s premises. If the defendant refuses to do so they will be in contempt of court. To ensure that abuse of the Order does not occur the order must be carried out specifically as detailed and only those documents that are required are allowed to be inspected. The Order raises Human Rights issues and could be tested under The Human Rights Act 1998.

20. Equity Today Mareva Injunction (Freezing Order) Often made ex parte and is used to prevent the defendant from removing assets out of the jurisdiction of the English Courts. Promissory Estoppel Central London Property Trust Ltd v High Trees House (1947). In 1939 the claimants leased a block of flats to the defendants who were going to the rent them out. However because of the number of people leaving London during WW II it was difficult to rent out the flats. As a result the claimants reduced the cost of the lease. However, at the end of the War in 1945 the flats became fully occupied and the claimants sought full price of the lease. Lord Denning held that they were entitled to claim the previously agreed money for the lease for 1945 onwards, when full occupancy had returned but stated obiter there could be no recovery of the full leasehold amount between 1940 – 1945. Equity therefore continues to develop through the judges applying existing law and weaving where necessary new threads to fill in the gaps and do justice.

21. Equity Today Concepts such as mortgages and trusts are founded on the idea that one person owns the legal interest in a property but has to use that property for the benefit of another. This other person is said to have an equitable interest in the property. Trusts are widely used in setting up such matters as pension funds family matters. Injunction to prevent Trespass Noise Anti-social behaviour Disclosure of secrets after leaving employment

22. The Following Matters are Assigned to the Chancery Division by the Supreme Court Act 1981 Sale, exchange or partition of land Redemption or foreclosure of mortgages Execution of trusts Administration of estates of deceased persons Bankruptcy Dissolution/taking of partnerships Probate business Rectification of deeds Patents, Trademarks or copyrights The appointment of a guardian of a minor’s estate Matters involving enactments relating to companies.

23. Summary Tasks What was the law like before 1066? What does the term common law mean? What 2 main problems existed in the common law? Why did equity develop? Were there any problems with equity? How did the Judicature Acts 1873-1875 reform this?

24. Explain what is meant by the term ‘ Equity is a gloss on the common law’ Equitable remedies are ‘discretionary’ whereas the common law remedy of damages is ‘as of right’- Explain this Give examples of 3 equitable remedies and explain them What are the Maxims of Equity and why are they used?

25. Essay Plan A)Outline the development of common law and equity B) describe the role of equity today (10 marks)