common law and equity Flashcards
the judicature act 1873
fused the administartion of common law and equity
abolished the common law and chancery courts and created a single high court
limitations of the common law
the writ system- after 1285 no new writs allowed to be introduced so caused unfairness for litigants
remedies were limitted
did not recognise certain rights- such trusts
how did equity develop to fix these problems?
the king acquired the help of the lord chancellor to make major decisions
chancellor held a political and religious role
religious routes- themes of fairness in equity
religious figures eventually replaced by lawyers/ legally trained chancellors
now judges have this power to apply equity principles
stack v dowden- shows judges discretion to deviate from common law principles and expand using equity
what did the court of chancery introduce to the law on equity
created a formalisation of decision making with distinct rules and procedures
usage of judges instead of lord chancellor
how did this create deficiencies in equity
precedent development took away flexibiliy
due to law reporting
equity became slow anc omplicated which undermied purpose
litigants dissatisfied with dual systems
how was these deficencies in both law solved: fusion of the court system
common law procedure act 1853- limits CL courts powers to grant equitable remedies
chancery amendments act 1858- CC granted power to award dmages/equitable remedies
judicature act 1873 & 1875- one court system (high court)
but intellectual distinction remains- Walsh v Lonsdale
what happens if the common law rules and rules of equity clash?
senior courts act 1981 s49(1)- “the rules of equity shall prevail”
arguments for fusion
Burrow 2002- many incosistencies between the two, so should remove the inconsistencies by combining and craeating a “coherent or hamonized law”
Kitto J 1975- “equity is the appendix that the chancery was composing for the saving of the common law, and is not an independant system of law”
