Common Law and Equity AS

• 1066 - William the Conqueror constituted the Curia Regis (Latin for the "King's Council")
• Representatives (or 'justices') of the King were sent to different localities to asses custom laws
• Justices returned to Westminster to discuss custom laws of the different localities of the country with the King
• Consistent body of rules was created by rejecting unreasonable laws and accepting those that appeared to be rational
• During the process of sifting, the principle of stare decisis ("let the decision stand") was adopted
• 1250 - Common Law had been decided which ruled the whole country

1. The Writ System - All civil actions had to be started by a writ in the common law courts. Litigants had to fit their circumstances to one of the available types of writ; if the case did not fall into one of the existing writs, the case could not be taken to court.

2. Remedy; Damages (Compensation) - The common law was becoming increasingly rigid and offered only one remedy; damages. However money was not always an adequate solution to a problem.

3. Stare Decisis - The development of the principle of 'stare decisis' meant the common law was inflexible as when a decision was made in a particular type of case,the same legal principle had to be followed in subsequent cases.

• People become dissatisfied with the common law courts and began to petition the King who was thought of as the 'fountain of justice'
  
• As the number of petitions grew, they were passed on to the Chancellor - usually a member of the clergy and thought of as the 'keeper of the King's conscience'
  
• Litigants soon began to petition to the Chancellor
• By 1474 the Chancellor had begun making decisions on his own authority - This was the beginning of the Court of Chancery
• Court of Chancery followed no bindings rules and so could enforce rights not recognised by the common law
• Court of Chancery could provide whatever remedy best suited the case - this type of justice became known as equity

• Before equitable rules could be applied, equity devised maxims, developed to certify that the verdicts made were morally fair, which had to be contemplated prior to a final court decision;

1. "He who comes to equity must come with clean hands" - claimants who have some way been in the wrong in the past will not be granted an equitable remedy.
EXAMPLE CASE: D+C Builders v Rees (1966)

2. "He who seeks equity must do equity" - anyone seeking equitable relief must be prepared to act fairly towards their oppenent.
EXAMPLE CASE: Chappel v Times Newspaper ltd (1975)

3. "Delay defeats equity" - Where a claimant takes an unreasonable long time to bring an action, equitable remedies will not be available.
EXAMPLE CASE: Leaf v International Galleries (1950)

• Injunction - Orders defedants to do/not do something
• Specific Performance - Compels a party to fulfil a previous agreement
• Recission - Restores parties of a contract to the position they were in before the contract was signed
• Rectification - Alters the words of a document which does not express the true intentions of the parties to it

Equitable remedies are discretionary - they are not given as of right.

• Court of Chancery became very popular and caused some resentment amongst the common law courts
• Common law courts argued that the quality of the decisions made in the court of Chancery varied with the length of the Chancellor's foot - the outcome of each case depended on the individual chancellor
• Earl of Oxford Case 1615 - Where there is conflict between common law and equity, equity would prevail

• Provided that equity and common law could both operate in the same courts and there would no longer be different procedures for requesting remedies from equity and the common law
• Although the two systems are both implemented by the same courts, the two branches of law are sperate and where there is conflict, equity still prevails.

• Equity remains to be an important source of law, especially for the law of trusts and tort law

• Equity declared that a deserted wife could receive an equitable interest in the family home
• Temporary solution offered by equity until the passing of the Matrimonial Homes Act 1967
• Act aimed to reverse the decision of the House of lords in the National Provincial Bank Ltd v Ainsworth (1965) case, where their decision was that a deserted wife had no right to stay in the family home.

1. Mareva Injunction (Mareva Compania Naviera v International Bulkcarrier (1975)) - prevents the defendant from taking his assets out of the Court's jurisdiction pending trial.

2. Anton Pillar Order (Anton Pillar KG v Manufacturing Processes Limited (1976)) - provides the right to search premises and seize evidence without prior warning

3. Super injunction - prevents the publication of the thing that is in isse and also prevents the reporting of the fact that the injunction exists at all

Recent attempts to supplement equitable jurisdiction have been denied by the House of Lords;

1. Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (1983)

2. Sport International Bussum BV v Inter-Footwear ltd (1984)