Common Law And Equity Flashcards
How was England governed before the Norman conquest?
Different areas of England were governed by different systems of law which was adapted by invaders who settled there
What were the different areas in England before the Norman conquest referred to as?
Circuits
What law was in the north?
Dane law
What law was in the Midlands?
Mercian law
What law was in the south and west?
Wessex law
Where was Dane law?
The north
Where was Mercian law?
Around the Midlands
Where was Wessex law?
The south and west
What was the problem with circuits?
The King had little control over the country as a whole and there was no effective central government
What happened in 1066?
William conqueror gained the throne
When did William the conqueror gain the throne?
1066
What was the system of law before the Norman conquest?
Different areas of England were governed by different systems of law which was adapted by the invaders that settled there. These areas became known as circuits, in the north there was Dane law, Mercian law in the Midlands and Wessex law in the south and west. The circuits caused a problems because it meant the kind had little control over the country and there was no centralised government.
What did William the conqueror do when he gained the throne?
Establish a strong central government
began to standardise the law
Introduced itinerant justices
What were itinerant justices?
Representatives of the King
What did itinerant justices do?
They were were sent to check the administration in the countryside and adjudicate local disputes in accordance to local laws. They would the tell those at Westminster these laws and decide which ones to keep and dismiss.
What had happened by 1189?
Henry 11 had established a common law which ruled the whole country
When had a common law been produced by?
1189
What did the common law in 1189 consist of?
The best customs from each of the circuits
When did the power of the monarch reduce?
1640’s
Why did the power of the monarch reduce?
The English civil war was fought between King Charles 1 and parliament, in part over the issue of the King making decisions without consulting parliament.
What happened in the 1640’s?
The English civil war was fought between King Charles 1 and parliament
What was starting to happen in the 19th century?
The House of Commons was becoming more important as the right to vote was increasing
What happened by the 12th century?
Common lose courts had been developed which applied common law created by Henry 11.
How were civil actions started in common law courts?
By a writ
What did a writ commence?
Civil actions in common law courts
What did the writ set out?
The grounds for the claim made.
Initially how were writs issues?
Writs were created to suit the situation
What stopped writs being created to suit a situation?
Provisions of Oxford 1258
What did the provisions of Oxford 1258 do?
Stopped writs being created to suit a claim
When was the provisions of Oxford?
1258
How would people file a civil case after the provisions of Oxford 1258?
Litigants had to fit their circumstances to one of the available types of writ.
What happened if the litigants case did not fit a writ?
Their case would not go to a common law court
How was the phrase ‘no writ - no remedy’ created?
Writs used to be created to suit the litigants circumstances. However, the provisions of Oxford 1258 prevented this and claimants have to make their case suit a pre made writ. If there was no suitable writ, your case would not go to court.
What problems did claimants face even when they did make their case fit a writ?
Lots of time was spend examining the validity of the writ rather than the merits of the claim
What was the problems with common law?
It was to rigid
The only remedy offered was damages
Common law courts and juries were easily corrupt
What was the problem with damages being the only remedy?
It wasn’t always an adequate solution
Often the petitioner was not paid
What did dissatisfied parties begin to do?
Petition to the King
Who were the petitions passed along to?
The chancellor, the Kings chief minister
Why did the King pass the petitions to the chancellor?
Because he didn’t want to spend time considering
What happened by 1474?
The chancellor was being petitioned himself and begun making the decisions himself rather than as a substitute for the King
How did the court of chancery begin?
By people beginning to petition the chancellor directly rather than go through the King.
What happened in the court of chancery?
Litigants appeared before the chandelier who would question them and deliver a verdict based on his own moral view, which was obviously a problem.
The court could demand relevant documents
How did the chancery court and common law court differ?
Common law courts did not admit oral evidence until the 16th century and had no way of extracting truth from litigants
Was the chancery court bound by precedent?
No, it relied heavily on the chancellors view of right and wrong
What type of remedy could the court of chancery give a litigant?
Whatever remedy best suited the case
How did equity come about?
The court of chancery was able to provide the remedy best suited for the case
What was the problem with equity?
It became unpredictable with every new chancellor
What was the common saying about equity?
“Equity varied with the length of the chancellors foot”
Why did “equity vary with the length of the chancellors foot”?
Chancellors were not lawyers and had no formal legal training
What happened in 1529?
The first lawyer, sir Thomas More was appointed as chancellor marking the beginning of a new era
When was the first lawyer appointed as a chancellor?
1529
Who was the first lawyer appointed as a chancellor?
Sir Thomas more
What did the earl of oxfords case 1651 establish?
That equity should prevail
Who decided upon conflicting decisions between the commit law and chancery courts?
The King
What did the King advise in relation to conflicting judgements of the two courts?
Equity should prevail
Why was it a good decision that equity should prevail?
Otherwise it would have been worthless, it could not fill the gaps of common law unless it was dominant.
What is equity?
A specific set of legal principles which assist common law
After some time, what began to dominate equity?
Precedent and standard principles
Why was it a natural process that equity began to be ruled by precedent?
Because it became standard practice to to appoint lawyers rather than clergy to the office of lord chancellor
What happened by the 19th centre in relation to equity?
Equity had developed case law and recognisable principled and was no less rigid than common law
What did the judicature acts 1873-75 set out?
The basis of the court structure which allowed equity and common law the be administered by all courts
Why was there no longer a need for the court of chancery?
Because equity had become a body of law rather than an arbitrary exercise of conscience
What did Lord Cairns say in Pugh v Heath?
‘It is now not a court of law or a court of equity but a court of complete jurisdiction’
What is Pugh v Heath relevant too?
The judicature acts 1873-75
When were the judicature acts?
1873-75
What does s52 of the judicature acts 1873-75 state?
When there is a conflict between common law and equity equity will prevail
Where does it state ‘if there is a conflict between equity and common law equity will prevail’
S52 judicature acts
