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.
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.
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'.
'The outcome should not be based on the length of the chancellor's foot'
- Injunction (Mareva Compania Naveiera) The Mareva Injunction Freezing Assets
- 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'
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.’
'Fusion' and The Judicature Acts
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’.
The idea was to unify the court system and do away with multiple jurisdictions.
They intended procedural fusion. They would be administered concurrently. Both courts would work in harmony, but the principles would be kept separate.
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.’
Burrows argues in favour of substantive fusion of principles in certain examples.
There are some areas where there are serious inconsistencies. And there are other places where there isn't good reason for the division.
Senior Courts Act is sometimes referred to as the Supreme Courts Act.
‘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.
…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.’
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
At Common Law:
If you need to mention the illegality then you cannot.
Lord Browne-Wilkinson adopted a Fusion Approach, he adopted for Equity the Common Law test.
The existence of fusion is a reason to adopt a consistent approach whether dealing with common law rights or equitable acts.
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?
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’
Cowcher v Cowcher s27 Bagnall LJ courts should be careful about how they approach rights in new cases
Re Polly Neck: A company owed property in Cyprus, it was taken in invasion, D now own. C want back.
Lord Neuberger: Is it appropriate for equity to still be creative?
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
'Maxims' of Equity
(Sayings, statements of principle, catchphrases) an important way of grounding the principles.