Equity(R) Flashcards
Customs?
After the Norman Conquest in 1066 William the Conqueror appointed judges to travel round the country making decisions in the king’ same many of which were based on common customs.
Defition of Equity?
Equity means fairness, many of our legal concepts have developed from equitable principles. There are many sources of law in the UK but Common Law and Equity are two of them. Common Law has developed over many centuries and has it’s principles derived from customs.
1) The custom must have existed since time immemorial.
Under the Statute of Westminster 1275, time immemorial dates back to 1189 and courts still use this date today. Since it is difficult to date a custom back this far in reality courts allow the oldest inhabitant of he locality to testify that it has happened for as long they remember. E.g. In 1980s in South Wales a local inhabitant aged 112 testified that he had used a pathway since he was a boy some 100 years earlier. In Simpsons v Wells 1872 when it was proved that a right to set up a refreshment stall on a public footpath had been given by a statute in the fourteenth century, hence had not been established since time in memorial dating back to 1189, so it had to proved that the custom had needed to exist at all times since it’s introduction or the courts reject the principle.
2) The custom must have been exercised peaceably, openly and as of right.
The custom must have been carried out without using force. It must have been carried out without using force. It must have been done openly, not in secret and no one must have given permission for it to have been done. Mills v Colchester Corporation 1867 fishing had only taken place because licence was granted each year. This meant that permission had been granted so the local custom could not be relied on.
3) The custom must be definite as to locality, nature and scope.
This prevents the courts needing to recognise anything which is too uncertain. Wilson v Willes 1806 The tenants of a manor claimed that they were entitled to take as much turf as they require from the common land on the manor. The phrase “as much as they required” was too uncertain and therefore could not be relied on as a custom.
4) The custom must be reasonable.
Even if the first three tests are passed the courts can refuse to recognise the custom if it is unreasonable. Wolstanton Ltd and Duchy of Lancaster v Newcastle under Lyne Borough Council 1940. Damage was being caused by mine works, the owners of the mine claimed that they had a right to mine without being liable to compensate for subsidence damaging their houses. The House of Lords held that this would be unreasonable and so did not uphold the custom.
New customs today.
It is very rare for new customs to be considered today, but where necessary the courts will recognise a new custom. In Egerton v Harding 1974 where the courts ruled that it was customary to duty to fence land to prevent cattle straying from the common. Again in New Windsor Corporation v Mellor 1974 where a local authority was prevented from building on land because the local community could prove that they had the right to use the land for lawful sports.
The development of Common Law.
Clearly the legal system could not rely totally on customs. After the Norman Conquest in 1066 William the Conqueror began to set up a more organised system of justice allow the country to become easier to manage. Judges were sent around the areas establishing the Curia Regis (the King’s Court) and disputes between nobles were encouraged to apply to these courts to settle matters. This practice became more regular under the reign of Henry II (1154-1189) when the country was divided into circuits or areas for judges to visit. (A system as still use today). On their return to Westminster judges discussed best practice and so a unified system of justice began to emerge, developing a common law for the country. For example, murder is a common law crime but prosecuted under the Homicide Act 1957, but theft is a crime defined by law under the Theft Act 1968.
Historical development of Equity.
One of the main problems with equity was the method by which cases had to be started. A writ had to be obtained and the offence had to fit the exact wording of the writ or the case would not proceed. This was difficult as many people could not read or write and writs were a complex document often resulting in sections being I accurately written for the offence resulting in the case not proceeding. This was further complicated by the Provision of Oxford in 1258 when there was a restriction on new writs being written. Prior to this a writ could be written for any offence. Post the Provision of Oxford an offence had to fit an existing writ and fictions began to be developed, so. Trespass to land needed to be interpreted as a violent trespass to fit in with an existing writ.
Another problem was that the only remedy was damages (a financial compensation). This was not appropriate in the cSe of trespass where a neighbour had built on another neighbour’s land. The building would still exist, compensation may be paid, but the use of the land was lost which was the sole purpose for brining forward the case.
Other defects in the Common Law.
There were also other faults with the Common Law Courts, for example:
- The Common Law Courts used juries which could be intimidated and corrupted.
- The Common Law had only one remedy, damages, which was often inadequate.
- The Common Law paid too much attention to formalities, e.g. If a contract was made which required written evidence for its enforcement, then lack of such evidence meant that the common law courts would grant no remedy.
- The a Common Law Courts did not recognise the trust.
The King and The Chancellor’s approach to Equity and Common Law.
The King was regarded as the”fountain of justice” and had the prerogative to make any order he considered to be correct. So if justice through the Common Law failed they could appeal directly to the king. Most cases were referred to the chancellor who was both a lawyer and a priest and was known as the keeper of the King’s conscience. The Chancellor was known to base his decisions on the principle of natural justice and fairness, following what was right rather than previous precedents. Defendants who refused to obey could be sent to prison to “examine their own conscience”. To ensure fairness prevailed a new set of equitable remedies were introduced, there included injunctions, specific performance, rescission and rectification. These principles are still used today. Eventually a Court of Chancery came into being under the control of the chancellor. Equity was not a complete system of law it merely filled in the gaps in the Common Law.
Common Law and Eauity.
Common Law and Equity operated separately, so there was overlap in the system and often conflict in the decisions that were made. The conflict was finally resolved with the Earl of Oxford case 1615, when the King ruled that where there was conflict equity prevail. This was further strengthened when this principle was included in S5 of the Judicature Acts 1873.
Chancellors and Equity.
Equity was initially very uncertain as successive Chancellors operated their own idea of fairness. This caused John Seldon to remark that “equity varied by the length of the Chancellor’s foot” so did Lord Justice Coke. However during the seventeenth and eighteenth centuries the Chancery Courts became more rigid and began to follow their own past decisions making the system fairer. The system became very slow with some cases lasting years. Another problem was that litigants wanted both Common Law and Equitable remedies, hence needing to take action in two separate courts. This problem was partially solved by Chancery Amendment Act 1950 and the Common Law Procedures Act 1952-60 which gave the courts the power to issue both Common Law and Equitable remedies. In 1873 and in 1875 the court structure was reformed with the Common Law courts and the Courts of Chancery merging into one system, S25 of the Judicature Act 1873 stated “where there is any conflict or variance between the rules of equity and the common law… The rule of equity shall prevail.” The key point was that all courts could now use equitable rules where suitable.
The operation of Equity.
Many of the rules on which equity is based are expressed in a series of series of sayings. There are five most important sayings.
1) Equity looks to the intention and not the form.
Berry v Berry 1929. Where a deed was held to have been altered by a simple contract. Under common rule a deed could only be altered by another deed. But equity decided that where the parties had intended to alter the deed it would be fair to take in to account that intention rather than the fact that they got the formalities wrong.
