Explain the development of equity. Describe and comment on the role of equity today.

the claimant would have lost part of his land. In a situation the claimant would probably prefer to have the building removed, rather than be given money for compensation. Since the King was regarded as the ‘fountain of justice’ and as he had the royal prerogative to make any order he thought right, people who could not obtain justice through the common law courts appealed directly to him, so he could intervene and grant them their rights. Most of these cases were referred to the King’s Chancellor, who was both a lawyer and a priest, and who became known as the keeper of the King’s conscience. This was because the Chancellor based his decisions on principals of natural justice and fairness, making a decision on what seemed ‘right’ in the particular case rather than on the strict following of previous precedents. He was also prepared to look beyond legal documents, which were considered legally binding by the common law courts, and to take into account what the parties had intended to do. Since the decisions were based on natural justice and conscience, defendants who refused to obey an order of the Chancellor could be sent to prison in order to give them time to examine their own conscience. To ensure that the decisions were fair the Chancellor used new procedures such as subpoenas, which ordered a witness to attend court or risk imprisonment for refusing to obey the Chancellor’s order. He also developed new remedies, which were able to compensate claimants more fully than the common law remedy of damages. The main equitable remedies were: injunctions, specific performance, rescission and rectification. These are all still used today. Eventually a court of Chancery came into being under the control of the Chancellor, which operated these rules of fairness or equity. Equity was not a complete system of law; it merely filled the gaps in the common law and softened the strict rules of the common law. The two systems of common law and equity operated quite separately, so it was not surprising that this overlapping led to conflict between them. One of the problems was that the common law courts would make an order in favour of one party and the Court Of Chancery an order in favour of the other. The conflict was finally resolved in the Earl of Oxford’s case (1615) when the King ruled that equity should prevail in other words, the decision made in the Chancery court was the one which must be followed by the parties. The ruling made the position of equity stronger and the same rule was included in section 25 of the Judicature Act 1873. Equity was initially very uncertain as each successive Chancellor applied his own ideas of fairness and justice. This caused John Seldon, a seventeenth century jurist, to say that equity varied with the length of the Chancellor’s foot. In other words there was no logical reason for the different ways in which each Chancellor came to his decisions. During the eighteenth and nineteenth centuries the Chancery became more rigid in their approach and began to follow their own past decisions in order to make a decision for the case in front of them. The system also became very slow, with cases lasting many years. By the nineteenth century many of the original advantages of equity over the common law courts had virtually disappeared. Another problem was that litigants who wanted both an equitable remedy and the common law remedy of damages were obliged to take two separate actions; one in the common law courts and one in the Court of Chancery. This problem was partially solved by the Chancery Amendment Act 1850 which entitled the Court of Chancery to grant the common law remedy of damages and the Common Law Procedure Acts 1852-60 which gave the common law courts the power to issue equitable remedies. However, the courts remained separate until 1873. In 1873 and 1875 the court structure was completely reformed with the common law courts and the court of chancery being merged into one single system. The administration was fused, but equitable principals were still clearly recognised as being distinct from common law rules since the Judicature Act 1873 section 25 stated ‘where there is conflict or variance between the rules of equity and the common law…the rules of equity will prevail’ The key point was that all courts could now use equitable rules where suitable, and all courts could grant both common law and equitable remedies. At the same time the rule (which had started in the Earl of Oxford’s case) that equity was the law to be followed if there was conflict between the common law and equity, was continued. Initial there were few guidelines for the Chancellor to use. However, as time went on, a series of maxims were developed which formed the basis of the rules on which equity operated. As equity became more formal, judges became more likely to follow past decisions. Today the doctrine of judicial precedent applies to cases involving equity, just as it applies to cases involving the common law. Many of the rules on which equity is based are expressed in a series of sayings called maxims they are: equity looks to the intention and not the form, he who comes to equity must come with clean hands, delay defeats equity, equity will not suffer a wrong to be without a remedy. Equitable remedies include injunctions – an order to one of the people involved in the case to do something or not to do something. Where the court orders one of the parties to do something, it is called a mandatory injunction; where the order is to refrain from doing something, it is called a prohibitory injunction. Injunctions are used today in all sorts of situations, specific performance – this is an order that a contract should be carried out as agreed. It is only granted for exceptional circumstances where the court feels the common law remedy of damages could not adequately compensate the claimant, for example in a contract to purchase land. Rescission – this is another remedy in contract cases it aims to return the parties as far as possible to their pre-contractual position. Rectification – under this the court will order that, where a mistake has accidentally been made in a document so that it is not a true version of what the parties agreed, that document should be altered to reflect the party’s intentions. The relevance of equity today – equitable rights, interests and remedies remain important in the law today. Concepts such as mortgages and trusts are founded on the idea that one person owns the legal interest in the property but has to use that property for the benefit of another. The person is said to have an equitable interest in the property. It is difficult to imagine what life today would be like without mortgages – the vast majority of homeowners but their property with the aid of a mortgage. Trust are widely used in setting up such matters as pension funds, as well as within families when property is settled on younger members of the family or between husband and wife. Equity can still create new concepts in the law. A major development is the idea of what is called equitable, or promissory, estoppel. Equitable remedies are still important and used in a variety of circumstances. Injunctions are ordered in cases of domestic violence as a protection for the abused partner. Injunctions are also used to prevent trespass to land or to prevent excessive noise, or smoke or other nuisances. They are used in employment law in various situations. Two reason equitable remedies are the Mareva injunction and the Anton Piller order. The mareva is a freezing injunction and is used where there is a high risk that the assets of one of the parties will be removed out of the UK before the case comes to trial. It allows the freezing of their assets. This is important as it means that there will be assets available at the end of the case to pay any damages that the court awards. The Anton piller order (now called a search order) was first used in Anton Piller KG v manufacturing processes Ltd (1976): it orders the defendant to allow the claimant to search his or her premises and take away any documents or other material that may be relevant to the case. This prevents the defendant destroying any goods or documents, which could be used as evidence in the case. From all of this it can be seen that equity still has a role to play in the modern legal system and it can still create new concepts and remedies to fit the justice of particular cases.