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It is often referred to as the conscious of the law, and is viewed as mitigating the harshness and rigidity of the common law. It is discretionary in nature but particularly in its modern context it operates within clearly defined parameters of substantive and procedural rules. Its contribution both to the development and to the substantive law (trust, mortgages) and to the provisions of remedies (SP, injunction) where common law remedies are either non-existent or inadequate is always anchored on over-riding considerations of justice and fair-play. HISTORY OF EQUITY Its early stages – equity is a universal truth and there can be no precedent in it 11th – 13th century medieval passage – the reign of the Chancellor’s foot 14th century – Rigor Juris sets in 15th century – separate court and procedure 17th century onwards: towards coming of Age 18th century – Coming of age 19th century – Judicature Act 1873
Acts of parliament 1290 – delegation by King to Lord Chancellor of responsibility of resolving the petitions. Earl of Oxford Case King James – you cannot stop a litigant from going to the chancery court, when they have, they can’t go back to the common law court. The CL could not prevent a litigant/parties from having recourse to the chancery court after a judgment had been granted but the chancery court judgment/decision could debar litigants from having recourse to the CL courts. They could not get a writ of habeas corpus. This did not mean that CC was a superior court of record in that it never asserted that it was superior to the court of law. The orders of that court are not addressed to the judges but to the parties. The court does not a null the judgment, does not say that it is wrong but instead says that for reasons personal to the party that it would be inequitable to allow the party to enforce that judgment of the CL court. The power of equity is necessary to allow equity to fulfill its mandate i.e. to carry out the maxims of trust and fraud e.g. he who comes to equity must come with clean hands. Before 1813 – only Chancellor hearing cases
Supreme court was divided into the HC and the CA 3. For administrative convience the HC was divided into division e. The effect gave both courts CL and chancey access to the full range of remedies 1870 – Attempt to pass law to create a single court ( a fusion of law and equity) HC of justice. It established one supreme Court 2. 4. Whether legal or equitable in nature. where there is a conflict between CL and equity. equity prevails. 1873 – idea resurrected.g. remedies and defenses. 1875 – Amendment of famous s25. probate and chancery division were no longer separate courts. resulting in the supreme court with the passage of the judicature act. Each division recognized and gave effect to all the rights and obligations.After 1813 – Vice chancelloe appointment 1833 – extension of the master of rolls jurisdiction 1841 – 2 more vice chancellors 1850 – A new set of chancery orders were produced by Lord Chancellor allowing masters to speed up cases in whatever way they chose 1851 – 2 Lord Justices were tasked with appeals from the court through the CA in chancery 1854 – Common Law procedure act was passed 1858 – The chancery amendment act was enacted. . Look @ for Next week Walsh v Lonsdale Great peace Case Joseph v Lyons  15 QB 280 Applegate v Moss  1 QB 406 Job v Job  6 CC 562 Lecture 2 The Judicature act and Fusion of equity and law? Objective of this act 1.
” Lord Denning in Errington v Errington . extraditing the hearing and determination of matters. Meaning in effect that the act has fused the 2 branches i. There is no doubt that the judicature act achieved organizational assimilation with the aim of cutting cost. what has sometimes inaccurately referred to as the fusion of law and equity. The Act simply transferred the old jurisdiction of the courts of law and equity to the new tribunal as the MODE in which it should administer the combined jurisdictions. one may argue as illustrated by modern case law: Tinsley v milligan  p 372. they run side by side and do not mingle waters.e. Look at AC HOL held that the C had an interest in property whether based on a legal or equitable title and was entitled to recover if he was not forced to rely on the illegality and even though the title on which he relied was acquired through an illegal transaction and that in the circumstances by the defendant showing that she had contributed to the purchase price of the property in question that there was a common understanding between the parties that they owned the property equally. Accordingly. law and equity has been fused for nearly 80 yrs. Adoption of a single rule approach – enforcement of an equitable interest acquired under an illegal transaction Lord Brown-wilkinson…… for all purposes now material equity and the common law are mingled and merged. where Lord Diplock opined with reference to Lord Ashbourne metaphor “ the waters of the confluent streams of law and equity have surely mingled now. Beyond organization Amalgamation The argument that the judicature act did more than achieve administrative fusion but was a bill/act of fusion of law and equity. D had established a resulting trust and there was no need to prove the reason for the conveyance in the sole name of P which was irrelevant to D’s claim.” What prompted these observations by Jessel MR was the emergence of an alternative view point. reiterated in referring to the act. law & equity into one as to the more conventional view as espoused by Lord Ashbourne when referring to law and equity that “ thought they run in the same channel. He noted that the “act was merely procedural in motivation” Sir George Jessel MR in 1880 in the case of Salt v Cooper . The objective of the act was organizational in focus and intent was confirmed by Selbourne LC in his contribution to the debate on the 1873 Act. This view expressed by Lord Denning gave traction with Lord Diplock more than 2 decades later.” he further argued that “to perpetuate a dichotomy between the rules of equity and the rules of CL which was a major purpose of the judicature Act to do away with is in my view conclusive erroneous conclusions as to the way in which the law of England has developed in the last 100 years. it was stated very plainly that the main object of the ACT was to assimilate the transaction of equity business and CL business by different courts of the Judicature. and the elimination of jurisdictional shopping.5. in the case of United Scientific Holdings Ltd v Burnley Borough Council . .
And accordingly. D argued that in both cases the time had expired and as such could not be brought. Attorney General v Drape  . in respect of limitation periods. The court noted “ it would have been a clock on our jurisprudence if those same facts gave rise to a time bar in the CL courts but none in the courts of equity.Coulthard v Disco Max Club . no difference between an action for fraud at CL and an action in equity for deliberate dishonest breach of fiduciary duty based on same facts. there is no distinction between an action for fraud at CL and an action in equity for the deliberate and dishonest breach of fiduciary duty based on the same facts. It wouldn’t be right. even if the equitable claim offered a wide range if remedies the equitable claim was subject to the same statutory period limitation. One was relying on CL other party on Equity. Held. This case dealt with limitation periods.” This case was an actions for fraud in contract and breach of fiduciary duty.