Common Law and Equity

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  • Created by: Ellie504
  • Created on: 16-05-16 18:50
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  • Common Law and Equity
    • History
      • 1158-1184 - Henry II - Circuits, Best customs combined into one common law.
      • 1066 - William I - Curia Regis - Use of Customs
      • 1215 - Provisions of Oxford Case - no new writs allowed.
      • Problems with the common law
        • Too focused on tradition and on formalities.
        • Damages the only remedy - not enough or sufficient for some crimes
        • Some results were unfair and perverse
        • EQUITY!
          • Created in 1345 by the Lord Chancellor (otherwise known as the Keeper of the King's Conscience)
            • Made its judgements based on equity = fairness.
            • Earl of Oxford's Case - 1615 - Established that where equity and common law come into conflict, equity will always prevail.
            • S.25 Judicature Act 1873 - Reaffirmed the principle from the Earl of Oxford's case.
    • Equitable Maxims
      • Delay defeats equity
        • Leaf v International Galleries
          • Leaf had bought a fake picture without realising it till many years later. The gallery would have lost even more money due to the passage of time. Leaving a claim too long prevents equity from being able to help.
      • He who comes to equity must come with clean hands
        • D and C Builders v Rees
          • Mr and Mrs Rees tried to use promissory estoppel to prevent the builders from suing them, but they themselves had acted unfairly upon knowing the Builders financial difficulty.
      • There is no wrong without a remedy
        • Eves v Eves
          • Lord Denning - equity is not past child bearing age. New remedies can always be created if necessary.
      • Equity looks to the intention not the form
        • Berry v Berry
          • Mr and Mrs Berry tried to ammend a Deed with a contract. A deed can only be ammended by another Deed. The judge saw past this and approved the change regardless.
      • Modern Remedies
        • Promissory Estoppel
          • A promise cannot be withdrawn if the other person has relied on it to their detriment
            • Spice Girls LTD v Aprilla World Service
        • Freezing Order
        • Search Order
          • Gives power to search premises and seize relevant evidence to the case without prior warning.
            • Anton Pillar KG v Manufacturing Processes LTD (1975)
        • Super Injunction
          • Stops anyone publishing information about someone, cannot even be publicised that the super injunction exists.
            • Ryan Giggs (2011)


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