Common Law and Equity AS

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  • Created by: Hannah
  • Created on: 31-03-13 15:15

Development of Common Law

  • 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
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Problems with the Common Law

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.

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The Beginning of Equity

  • 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
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Equitable Maxims

  • 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)

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Equitable Remedies

  • 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.

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The Earl of Oxford Case 1615

  • 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
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The Judicature Acts (1873 - 75)

  • 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.
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Development of Equity

  • Equity remains to be an important source of law, especially for the law of trusts and tort law
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Matrimonial Homes Act 1967

  • 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.
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Modern Equitable Remedies

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

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Equitable Jurisdiction

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)

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