Equity problems

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Equity problems

1) discretionary and inconsistency.

2) common law and equity courts conflicting with eahother.

3) they could only award their types of remedies. 

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Discretionary and inconsistency

Most prominent characteristic of equity is it's discretionary. (Chancellor made his judgments based on what he thought was a just result rather than on rigid principles of law).

This led to court inconsistency. (One Chancellor may have on view of what is a justy result in a case whilst his successor may take it quite different view- this led the 17th century scholar John Selden to jibe ‘equity is a roguish thing, for it varies with the length of the Chancellor's foot’.

Therefore, difficult to predict with certainty what the outcome would be for any one case in the Court of Chancery).

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Conflict between courts

Common law courts and Court of Chancery were conflicting with each other. Court of Chancery was recognizing rights and granting remedies that weren’t available in the common law courts; therefore judgements in common law courts were being disregarded.

Earl of Oxford's Case 1615

Common law court gave a judgment that was condemned by Court of Chancery; Chancery issued an injunction that effectively overturned the common law courts decision. Common law court contested the grant of this injunction and the case was referred to king- James I. King consulted Attorney General- Sir Francis bacon- who advised that where common law and equity conflicted, equity should prevail. Court of Chancery has supremacy.

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Limited remedies

Common law courts and Court of Chancery could only award their own particular remedies. I.e. if a person bringing an action for trespass was asking for both damages and an  injunction, then they would have to bring the claim for damages to the common law courts and the order for the injunction to the Court of Chancery.

So the plaintiff (person bringing the civil action) would have to start two separate actions in respect of one set of facts.

This was expensive and time consuming- as Dickens criticizes in ‘Bleak House’.

These problems were rectified by 19th century procedural reforms known as the Judicature Acts 1873-75.

(confirmed the strength of equity, formalising that equity should prevail where there is conflict).

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