Fusion Essay

Question 1

Introduction (4)

Answer 1

• X’s assertion invites exploration of the historical development of equity and its key principles to address the ongoing debate about fusion between the common law and equity
• The equitable jurisdiction was developed to mitigate the harshness of the common law
• Equity is a supplementary and fragmentary jurisdiction and as Maitland suggests -it should be regarded as a gloss added to the common law rather than an independent system
• This discussion will assess the origins of equity and the reform that aimed to address its initial weaknesses, ultimately concluding in agreement/disagreement with X that equity has not fused with the common law, although the Judicature Act 1877 has authorised administrative fusion

Question 2

Paragraph 1 - ongoing development (4)

Answer 2

• Equitable principles have undergone continuous refinement
• Notable areas like constructive trusts and the tracing remedy have gained significance, particularly in addressing sophisticated transnational fraud
• Development remains a complex matter, some areas judicial expansion others reluctance
• Traditional principles have not changes

Question 3

Paragraph 2 - development (5)

Answer 3

• Equity, a legal branch administered by the Court of the Chancery emerged to alleviate the inflexibility of the common law
• By the 13th century, the common law had become a rigid set of principles, litigants had to petition to the king for relief – leading to oversight by Lord Chancellor
• The CC aimed to achieve fair and equitable results and its principle became equity
• The Earl of Oxford’s case marked a pivotal moment where equity took precedent over common law – particularly in injunctions
• Highlighted equity’s role – intervening – fairness and conscience

Question 4

Paragraph 3 - Development (6)

Answer 4

with England until 1902
* In 1856 the Common Law Procedure Amendment Act (Ireland) was passed which gave the common law courts power to grant equitable remedies in limited situations.
* The Supreme Court of Judicature Acts in England and the Supreme Court of Judicature (Ireland) Act 1877 reformed administration of justice – administering both common law and equitable remedies
* Ended the need for the litigants to choose.
* The Courts of Justice Act 1924 further solidified the fusion of legal and equitable jurisdictions
* Addressing arising conflicts, Section 28(11) of the 1877 Act – equity prevails – harmonised system

Question 5

Paragraph 4 - Yes Fusion (7)

Answer 5

• Undoubtedly, there has been significant fusion between common law and equity
• Since the Judicature Acts, this is heavily debated in courts
• The case of Walsh v Lonsdale held that the Judicature acts had fused into one
• Emphasised in United Scientific Holdings ltd v Burnley Borough Council
• Forcefully - ‘the two systems of substantive and adjectival law formerly administered by courts of law and courts of chancery … were fused.’
• Relief for duress and undue influence exemplifies fusion – both remedies are nearly identical
• Showcasing a harmonised approach to resolving legal issues

Question 6

Paragraph 5 - Problems with fusion (3)

Answer 6

• Fusion would compromise the delicate balance introduce confusion and ambiguity as to the forms of relief
• Full fusion will result in the dilution of equitable principles, undermining the principles equity sought to uphold
• Striking a balance is crucial to avoid unintended consequences and preserve the integrity of equity

Question 7

Paragraph 7 - Fusion? No (4)

Answer 7

• Subject to debate – ongoing
• Jessell MR in Salt v Cooper argues against fusion, the two systems run parallel
• “but it was not any fusion, or anything of the kind, it was the vesting in one tribunal the administration of law and equity in every cause, action or dispute which should come before that tribunal”
• Development of common law since Judicature acts has been influences by equitable principles – no doubt that distinctions remain
• Key difference – reliance on discretion – not applicable at common law – this is the fundamental principle of equity

Question 8

Paragraph 8 - Fusion No - 2 (6)

Answer 8

• Reluctance to apply the principle of substantive fusion can be discerned from the approach taken by the HOL in Lord Napier and Ettrick v Hunter
  o Lord Goff - ‘justification for sweeping the line of equity cases under the carpet as though it did not exist’
• Tinsley v Milligan - Lord Browne-Wilkinson – relied on both common law and equitable principles – asserting that the two had developed side by side
• Meagher v Dublin City Council & Anor – more modern context – Justice Hogan affirmed the distinctiveness and the common law and equity
• Hogan J asserted that the judgements of Hynes appeared to suggest a complete fusion
• ‘save for a stray reference by O’Higgins CJ to the “fusion of common law and equitable rules” there is, in fact, little in the judgments to suggest that some broader concept of substantive fusion was actually being embraced or considered.’

Question 9

Paragraph 9

Answer 9

• Fusion fallacy has not become established as outlines in Tinsley and Napier which contain “meticulous analysis of the separate common law and equitable origins and principles”
• The concluding comments in Hanbury and Martin: Modern Equity appropriately assert:

o They are coming closer together. But they are not yet fused

Question 10

Conclusion

Answer 10

• Common law and equity are distinct in features and application
• Judicature Acts – question arises
• Two schools of thought fusionist v anti-fusionist arguments for both sides
• However, the Judicature Acts were clear with their purpose that only procedural and administrative matters of the jurisdictions would be merged
• Fusion of the substantive principles would remain distinct
• Equity’s fundamental principle is discretion and the conscience of law – this will never merge entirely with this common law otherwise out legal system would collapse due to the undermining of uncertainty applied in unnecessary circumstances
• Complete fusion remains contentious