Common Law and Equity
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To: Miss Hazell From: Melissa Sweetman Date: 24 January 2005 Subject: Common Law and Equity 1.0 Introduction I have been asked to write a report on the development of common law and equity. Common law refers to the law created by judges that was historically significant but has been since superseded by parliament. It is in parallel with equity which refers to the source of law created by the Lord Chancellor which was designed to supplement the common law and allow people the opportunity to avoid the inherent problems. Equity is 'the gloss on the common law'. The following report will go through step by step on how common law and equity have developed between the years 1066 to our present day. 2.0 Development of Common Law In very early times- before King Alfred, there was no system of justice which applied to the whole of the country. The population was not ruled by a single monarch, transport and communications were available to very few and no law books were available, however, the population was very small at this time, therefore meaning it was not required as much as nowadays. In 1066, William I made changes to the old system, introducing the Curia Regis and appointing judges-common law was first introduced during this time. The kings representatives were sent throughout the land to check local administration and hear local cases. Cases were interpreted and customised to suit the whole country.
An equitable principle is used to stop one party using a contract enforcing his rights when he has given his word that he will not. Therefore one case would have two outcomes. A conflict occurred The Earl of Oxfords case 1615, which decided that if equity and the common law were in conflict, equity would prevail (codified in the Judicature Act 1873 and currently contained in the Supreme Court Act 1981). The reason he made this was to correct mistakes of the common law and could not do this if it was not able to change it. 6.0 Problems with Equity 6.1 Problem 1 Equity still wasn't perfect. It was not bound by the Stare Decisis. Stare Decisis is a Latin term used in common law to express the notion that prior courts decisions must be recognised as precedents, according to case law. This term meant 'let the decision stand'. This was a problem because different people had different decisions and this made it difficult when coming to a final decision. Each successive chancellor applied their own definition of fair which caused uncertainty in whether a case will be won or not. In order to create some certainty within the system equitable maxims were created which outlined what would be fair and unfair. 6.2 Problem 2 For a party to claim both damages and an equitable solution then they had to bring two cases one in the common law courts and one in the court of chancery.
8.1 Equitable Estoppels Lord Denning created this from the High Street Case (1947). Equitable Estoppels prevent the law from making unfair solutions. 8.2 Deserted Wife Equity This was made so that if a husband deserts a wife and children then the wife would have an interest in the house even if the property was not hers. This was incorporated into the 'Matrimonial Homes Act' (1967) 8.3 Freezing Injunction A specific type of injunction is the freezer order, it is an ex-party interlocutory injunction designed to prevent the removal of assets from the courts jurisdiction, or dissipation there within (Z Ltd v A 1982). Passports may also be confiscated (Bayer AG v Winter 1986) 8.4 Anton Pillar Search Order Another expansion to equity is the Anton Pillar order. This orders the defendant to allow the plaintiff to enter his or her premises and take away documents or materials that may be relevant to the case. This is vulnerable in the case of equity as it prevents the defendants destroying what may be very valuable evidence. This is highlighted in the case of Anton Pillars KG v Manufacturing Process Ltd 1976. Even though many remedies have been through equity the Courts are prepared to extend these remedies. The principle that they are all discretionary still remains 9.0 Conclusion Equity has already seen many changes and new areas of law have been developed, however equity and its laws are constantly reviewed and new areas are still being developed. Extensions of equity are constantly being brought before the attention of the House of Lords, enabling equity to continue to grow.
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