The English Legal System: The Nature and Development of English Law.

As other courts grew they all competed for business as it was the custom for the litigants to pay the courts.  It became cut throat and at times events called “legal fiction” caused one court to cease jurisdiction from another court.

It became clear that all was not right, the corruption and bribery was rife and all the courts where in competition for revenue.  There are 6 main defects which have been identified in the common law system:

• What is important to understand in this time was the statue of Westminster II 1285 which followed The Provisions of Oxford 1258.  The statue enabled new writs to be issued as long as the claims were similar to those covered by an existing writ prior to the Provisions of Oxford. These were called writs in consimili casu.  The statue was one of the causes of the development of equity.  It gave new development in the common law but it was very conservative and restrictive.

• The procedure of the courts seemed to become more important than the justice.  If there were any errors in the documentation the action could fail.  Extreme but true that many actions were lost due to technical errors.

• Fictions and Defences can be seen as another cause of the development of equity.  As well as Fictions as described in footnote 3, there were additional problems caused by Defences which became established and very difficult to control. An example of this was the defence of ‘ession’; enabling a party to delay an action for up to a year and a day at a time due to floods, sickness etc.

• The only recourse to justice was through damages, this remedy was not always what was needed or wanted.   Still today the only remedy in common law is damages which are of monetary forms of compensation.

• Inadequate substance law, another cause.  This at the time was rigid and although there was some development it was not enough to enable this area of the law to be flexible with the development of society.

• Precedent was something which started in the very early days, called stare decisis. Followed by the court so rigidly without the ability to be flexible in the decisions.

So what was the solution, as the King was the head and ruler of the country it was only natural that these disputes would land on his doorstep. To begin with, in the 13th century, the King did preside over these and give judgements, however it soon became too much of a burden on his time.  Thus he passed this on to his chief official, the Lord Chancellor.  The Lord Chancellor had two functions as well as being the Kings chief officer he was also the King’s chaplain.  So in the early days he was a cleric of the Catholic Church.  This is important to the development of equity.  It is as a result of the Lord Chancellor being a cleric that equity materialised. As a cleric; when he made decisions, he did the most equitable thing to do depending on each circumstance.

So this court, Court of the Chancery, was born to deal with those matters where common law had no remedy.  The procedure was inquisitorial.  This court became very popular; however the consequence of this was it became unpopular with the other courts. In the 17th century a dispute called The Earl of Oxford’s Case (1615), resulted in a decision which stands today; where there was a conflict between common law and equity, then equity should prevail.  Equity supplements common law where common law might be flawed, never superseding.  In the latter part of the 19th Century was a period of reform in the judiciary and culminated with the Judicature Acts 1873-75.  Not only where the Courts reorganised, there were changes made in the administration of law and equity.  All Courts under the Supreme Court were empowered to administer law and equity and to grant legal or equitable remedies.  In essence the Acts ensured that in the future the two systems should be administered in the same courts.

The achievements of the Court of the Chancery were considerable in the areas of trust and mortgages, partnerships, insolvency, and many other areas.  It provided new remedies such as;

• An injunction
• Specific Performance
• Rectification
• Rescission

These remedies are still valuable today but can only be granted in equity.  On this point it is extremely important to note that equitable remedies are not requested but are discretionary.  That is it is up to the courts discretion to grant an equitable remedy.  In 1981 the Acts were updated and replaced by the Supreme Court Act 1981.

An example which is valid in today’s law as it was in history are, as shown in substantive law;

• The common law did not recognise what is called a Trust, in today’s law Trusts are still only recognised in equity.  If for example I was under 18 and had been left a house in someone’s will.  I could not in the past nor today own the legal estate in that house.  The house will be vested to a Trustee who would hold the legal estate in trust until I was over 18, and then would be bound to legally transfer the legal estate over to me.  Thus I would be a beneficiary of the trust.  If the Trustee refused to compile I would have remedy in equity to compel him to do so.  Before equity however the minor had no remedy if the Trustee refused to compile, he could sell the legal estate and the beneficiary could do nothing as a Trust is not recognised in common law and the Trustee is the owner of the legal estate.  

It is obvious to see why the remedy in equity was needed.  There are many more such examples where common law does not recognise a cause for action but equity does.