S1U1 Common Law and Equity

After the Norman Conquest in 1066:

- William the Conqueror sets up the Curia Regis (the King's Court) and appointed his own judges.

- These judges were sent to major towns to decide important cases

Henry II 1154:

- Divided the country into 'circuits' for the judges to visit

- Judges would use local customs or Anglo-Saxon laws to decide cases

- Over time, the judges all chose the best customs that were then used by all judges throughout the country, creating a 'common' law throughout the country.

Custom: Rules of behaviour that develop in a community without being deliberately invented.

General Customs: The basis of English common law

Local Customs: Person claims that they are entitled to a local right, such as right of way, because it is what has always happened locally

Local custom tests:

- Have existed since 'time immemorial'

- Have been exercised peaceably, openly and as of right

- Be definite as to locality, nature and scope

- Be reasonable

- Fills the gaps left by common law

Earl of Oxford (1615): EQUITY PREVAILS over common law

Developed due to problems in common law:

- Only certain types of case recognised, technicalities meant injustice

- Only common law remedy available was damages which would not always resolve the situation.

To fix this:

- More remedies to allow plaintiffs to be appropriately compensated (injunctions, specific performance, recission, rectification)

- New procedures (subpoenas etc)

The rules in which equity operates

1. Equity looks to the intention and not the form

- Berry v Berry (1929): Deed held to have altered by a simple contract, which wouldn't have been possible under common law, as the parties intended to alter the deed.

2. He who comes to equity must come with clean hands

- D&C Builders Ltd v Rees (1965): Rees refused to pay the full amount for building work, knowing the builders needed this money desperately. Judge refused to apply the doctrine of estoppel, which would have prevented the builders asking for the remaining amount, as the Rees' had taken unfair advantage of the fact the builders were in financial difficulties, thus they had not come to court with 'clean hands'

3. Delay defeats equity

- Leaf v International Galleries (1950): Plaintiff sold painting that both parties believed to be genuine. Court did not award recission because of the delay of five years between the sale and the discovery that the painting was not genuine.

4. Equity will not suffer a wrong to be without a remedy

- Equity can create new remedies where otherwise the plaintiff would not have an adequate remedy

- New remedies can be created, for example freezing orders and search orders

Injunctions:

- Mandatory Injunction: Orders a party to do something

- Prohibitary Injunction: Orders a party to NOT do something

- Warner Brothers v Nelson (1937): Actress ordered not to make a film with a different film company

- Interlocutory Injunction: Protects one parties rights while waiting for the case to be heard

Specific Performance:

- Order that a contract should be carried out as agreed

Rescission:

- Aims to return parties as far as possible to their pre-contractual position

Rectification:

- A mistake has accidentally been made in a document that changes what the parties agreed to should be altered to reflect the parties true intentions

Freezing Order:

- Assets controlled by third parties (eg banks) must be frozen

Search Order:

- Allows claimant to search defendants property to remove material that could help prove the claimants case.

Modern examples of equity: Trusts, mortgages

- Injunctions often used in domestic violence cases to protect the abused, stopping abuser from entering premises where the abused is living

- Equitable maxims still apply today

New Concepts:

- 'Deserted Wife's Equity' developed in the twentieth century, where a husband deserts his wife and children the wife had an equitable interest in the matrimonial home, even if it was solely owned by the husband. Allowed wife to stay in the home while the children were dependant

- Freezing orders and search orders both created in the twentieth century