Common Law Complexities to Modern Jurisprudence

The early common law system strictly applied the law consistently across the nation creating a complex and expensive legal system. This resulted to injustice and unfairness (McDonald & Street, 2018). Writs were required to take legal actions. Mistakes in their delivery often failed the case. Complexities in the rules regarding writs further enhanced the problem. For instance, the Provision of Oxford 1258 and the Statue of Westminster limited the number of writs. This precluded legal actions due to the absence of a relevant writ that covered them (McDonald & Street, 2018, p. 2).

Equity has its roots in Roman Law (Titi, 2021, p. 24). It came into existence during the 13th century (Titi, 2021). To address the complexities of the common law, the King started dispensing equity principles (McDonald & Street, 2018). Equity corrected the deficiencies in the common law rules arising from its universal application (Oleck, 1951). For example, a strict application of common law would not have allowed a person other than the land owner to enjoy a beneficiary right under a trust or a borrower to enjoy a mortgagor rights (Bray, 2020, p. 4).

The King delegate the equitable role to the Lord Chancellor and the Court of Chancery (Titi, 2021). By the end of the 15th century, the judicial power of the Chancery was fully recognised with only lawyers appointed to the Chancery (Chennells, 2015). The first court of equity was established in the mid 14th century, which offered an alternative jurisdiction to the common law rules (Titi, 2021). It relied on natural justice. Like the common law rules, it also started applying a consistent approach, routine procedures, precedents (Titi, 2021). Thus, equity also became a rules-oriented system, which reduced some of its flexibility. In that light, there was certain kind of complexity, which was also seen with the common law (Titi, 2021).

The Court of Chancery was in effect developed as a court of conscience. Conscience played a key role in the development of equity as it was primary principle applied in the 15th and 16th century court cases (Klinck, 2016). The application of the test of conscience is seen in modern cases, such as in T Choithram International SA v Pagarani, where it was held it would be unconscionable to change the mind after an intention to gift and all steps necessary to complete its registration are made.

Separate court system administered equity and the common law. The Court of Chancery acted as a check on the rules applied by common law courts with the aim of preventing injustice. This caused conflicts between the two as equity was also seen as interfering with the certainty of common law (McDonald & Street, 2018). The conflict escalated in the case of Earl of Oxford’s case where the equity court issued an injunction against the judgement of the common law courts, which was alleged to have had been obtained by fraud. The Lord Chancellor relied on the principle of conscience. King James I intervened favouring the Court of Chancery, which led to the maxim that equity prevails in case of a conflict between the equity and common law (McDonald & Street, 2018).

Equity principle began to make a concrete place in the legal system. The doctrines of equity began to be codified shaping the judicial systems and enforcement of laws. It started with the Judicature Act 1870, which fused the courts of equity and the common law, but maintained separate rules and principles. To balance any conflict between equity and the common law The Judicature Act 1873 ensured that the incorporation of the decision in Earl of Oxford’s case. Its Section 25 provided a residual clause that holds equity over common law in case of a conflict (Chennells, 2015). This is enacted as Section 49 of the Senior Court Act, 1981.

The Judicature Acts 1873–75 brought further ‘fusion’ reforms requiring the courts to apply both equitable and common law rules. The dual system of courts of common law and equity was merged into a single Supreme Court, which comprised the High Court and the Court of Appeal. Judges’ jurisdiction were fused ensuring that all judges can apply both the common law and equitable rules. The effect of the fusion is seen in many cases. Examples are the Walsh v Lonsdale (1882) or United Scientific Holdings Ltd v Burnley Borough Council (1978), which recognise the singularity of a court system that upholds the primacy of equity. Cases such as Seager v Coydex Ltd (1967), and Attorney-General v Blake (2001) demonstrate that equity and common law are not apart but closer and complement each other. The complementary aspect is found in the certainty principles of common law subject to checks of equity (McDonald & Street, 2018). The test of unconscionability in the case of T Choithram International SA v Pagarani, is an example.

Equity besides being codified has emerged as the guiding principles for the courts. They are broad principles that guide the courts. Such principles govern the nature of equity and its jurisdiction; the conduct of the claimants; and the circumstances in which equity operates (McDonald & Street, 2018, p. 7). These are reflected in maxims, including: i) “Ubi Jus Ibi Remedium” meaning “where there is a right there is a remedy”; ii) “equity Will Not Suffer A Wrong To Be Without A Remedy”; and iii “he who seeks equity must do equity” requiring the claimant to come with clean hands among others.

Equity is not only applied by the domestic legal system, but also by the international adjudication bodies. It is well recognised in the mainstream international legal system. Article 74 and 83 of the UN Convention on the Law of Sea providing an equitable delimitation of the exclusive economic zone or Article 38 of the Statute of the Permanent Court of International Justice recognising fairness and good conscience is an example.

To conclude, the introduction of equity and fusing it with common law rules have allowed the court a range of remedies, either equitable or common law, to decide issues and deliver justice.

References

Attorney-General v Blake [2001] 1 AC 268.

Chennells, R. S., 2015. Equitable Access to Human Biological Resources in Developing

Countries Benefit Sharing Without Undue Inducement By. Switzerland: Springer International Publishing

Earl of Oxford’s Case (1615) 1 Rep Ch 1.

Klinck, D. R., 2016. Conscience, Equity and the Court of Chancery in Early Modern England. Oxon: Taylor & Francis.

McDonald, I. & Street, A., 2018. Equity & Trusts Concentrate Law Revision and Study Guide. Oxford: OUP Oxford.

Oleck, H. L., 1951. Historical Nature of Equity Jurisprudence. Fordham L. Rev. , 20 (23 ).

Bray, J., 2020. A Student's Guide to Equity and Trusts. Cambridge : Cambridge University Press.

Seager v Coydex Ltd [1967] 1 WLR 923.

T Choithram International SA v Pagarani [2001] 1 WLR 1

Titi, C., 2021. The Function of Equity in International Law. Oxford: Oxford University Press.

The Judicature Act 1870

The Judicature Act 1873

The Senior Court Act 1981

The Statute of the Permanent Court of International Justice

The UN Convention on the Law of Sea

United Scientific Holdings v Burnley Borough Council [1978] A.C. 904.

Walsh v Lonsdale (1882) 21 Ch D 9