The development of the common law made a strong central government, and England was unified and controlled by a centralized crown. Laws were given out by the Justices in Eyre, or travelling judges, in the name of the King, the law was given out as a law common to all, and dispensed through the common law courts and the writ system.
The common law operated through a writ system. A writ is a written command issued by the Lord Chancellor, which offers the defendant to explain why the crime was committed. The system was formal and rigid, bound by ‘no writ, no remedy’. So if there was no writ to deal with the plaintiff’s claim then there was no remedy. However, if there was no appropriate writ, Lord Chancellor could just issue a new one, and this expanded the common law.
Since the Lord Chancellor could just issue new writs, disputes were removed for Courts and barons were losing money. So the barons forced the King to forbid Lord Chancellor from issuing any new writs. There was no development of common law. This was the Provisions of Oxford 1258.
Twenty seven years later, the Statute in Consimili 1285 came about stating that new writs could be issued but only writs of like cases pre 1258. This meant that development of common law was very slow and limited.
Equity originated from Lord Chancellor. Equity was initially separate from the common law so it was not bound to the formal rigid rules, and was very flexible. Equity was not an independent system, and the appeals were passed on to the Principal Royal Officer- the Lord Chancellor. Lord Chancellor was the King’s Chaplain, and as a chaplain he could apply laws of morality, on the basis of natural justice and people would follow it because he was a priest and was seen to have good judgment.
Equity basically means fairness, and was made to aid and supplement the common law where it was restricted, “Equity is a glass on the common law” Frederick W. Maitland. Equity has two jurisdictions: recognition of rights where common law was restricted i.e. trust. A trust means that one person (a trustee) can hold legal title to property, not for their own benefit but on behalf of another person (beneficiary). The common law only recognizes rights for the person who owns legal title, the trustee. So if the trustee refused to give property to the beneficiary, the beneficiary could not sue. But equity recognizes the rights of the beneficiary, even though they did not have legal rights to the property. The other jurisdiction if equity was providing alternate or new remedies to the writ system where common law could not provide any i.e. Specific Performance. This was useful for claims for breach of contract. Common law doesn’t provide remedies for breach of contract, but the remedy might not always be suitable. If two people are in a contract that one person (A) areas to sell another (B)a vase. If A breaks the contract, he could be sued by B at common law for breach of contract. The remedy available form common law would be to receive damages, or compensation, but B may just want the vase and not damages. So equity could order A to perform his contract and sell B the vase.
Equity was very flexible, unlike the rigid, formal common law, and it was not bound to the common law so it could grow and expand. Equity could aid and supplement the common law where it was restricted. There were however, disadvantages to equity (the Lord Chancellor’s foot). The biggest disadvantage of equity was also its biggest advantage- flexibility. The decisions were not based on rules, but based on the morals of the Lord Chancellor and the Vice Chancellors. Equity was based on variable personalities and not universal and predictable principles, so there was no common moral understanding, and the outcome of courts was unknown, “Equity varies with the length of the Lord Chancellor’s foot” John Seldon.
Because of these disadvantages, there was pressure to formalize equity. Equity turned from personality based and unpredictable to a rule based system. This was a creation system of precedent applicable to the Chancery Court. So instead of practicing judicial discretion on every case, they were to use discretion for like cases. This led to more consistency and predictability of Equity.
The Judicature Act 1873-5 removed the formal separation of common law and equity and bound the two. The courts were permitted to dispense both forms of law. If there was a case where common law and equity clashed, the judicature acts confirmed the decision of the Earl of Oxford’s case that equity always prevailed over common law. It had to be equity that prevailed because if it didn’t there would be no point of it.
Equity still plays a role in common law. The Distinction between equity and common law still remains. “The two streams have met and now run in the same channel, but their waters do not mix” Lord Denning. The rules pre 1873 still exist in present day. Equity still aids and supplements the common law where it is restricted. Equity is still able to develop principles even with the mixed court system. Bagnall J “Equity is not beyond the age of child bearing.”
There is a distinct approach to applying the rules of equity through the maxims of law. “He who seeks equity must do equity”, meaning if you are expected to be treated fairly, you must treat others fairly, so anyone seeking fairness in court must treat their opponent fairly (Chappel vs. Times Newspapers 1975). “He who comes to equity must come with clean hands” meaning you cannot seek a remedy if you have done something unlawful or unfair in terms of that case (Overton vs. Banister 1844).
