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Common Law and Equity PDF Print E-mail

Common Law and Equity: A Brief Historical Overview

Prior to the Norman Conquest of 1066, there was no unitary, national legal system. The Normans sought to address this through the development of the Royal Courts and the establishment of the common law that had their roots in the Kings Council (Curia Regis). The principle purpose behind this was essentially to assert and affirm their central sovereign power. A practice was started of sending judges around the country to hold assizes (sittings) to hear cases locally. Over time they took the best local laws and applied them throughout the land, thereby creating a law common to the whole country, hence the term common law.

By the end of the thirteenth century the common law courts took on a distinct institutional existence from the Kings Council in the form of the courts of Exchequer, Common Bench and the Kings Bench. As the work of the common law courts grew, the judges began to use previous decisions as a guide for later cases thereby beginning the doctrine of precedent. Of the three courts, the Common Bench was then by far the busiest court as regards civil cases, with jurisdiction over matters between subject and subject, such as disputes over rights to land and actions for debt. Proceedings were commenced by the plaintiffs purchase of a writ. As the writ system developed the claimant was required to obtain a writ in a form appropriate to the claim. Once the writ was obtained it governed the detailed form the action would take; if the wrong one had been chosen, the court would be reluctant to deal with the matter and the plaintiff would be required to recommence proceedings. Consequently, the writ system became too formalistic and beset with technicalities, resulting in injustice, inhibiting the development of the common law. Other problems with the common law were that the common law courts had only one remedy namely, damages that was often inadequate; they used juries that could be bribed or intimidated, and they did not recognise the trust. A trust being a device where property is legally owned by trustees to hold for the benefit of another (beneficiaries).

The need arose to mitigate the rigor of the common law allowing the courts to use their discretion and apply justice according to natural law. The response was the development of equity. Grieved litigants began to petition the King as the Fountain of Justice. As the number of petitions increased these were passed for consideration and decision to the Lord Chancellor as the Keeper of the Kings Conscience. The Chancellor was usually a bishop, learned in civil and canon law. Some holders of the office were in effect the Kings chief minister.

As the common law courts became more formalistic and more inaccessible, petitions to the Chancellor correspondingly increased resulting in the emergence of the Court of Equity (Court of Chancery). The Chancellor dealt with these petitions on the basis of what he perceived was morally right/just based upon the merits of the particular case before him. In 1474 the Chancellor began to issue decrees in his own name, thereby marking the independence of the Court of Chancery from the Kings Council. Proceedings before the Chancellor were simpler by comparison to the common law courts. Equity was not bound by the writ system and cases were heard in English instead of Latin. Juries were not used. The Court of Chancery could order a party to disclose documents as well as, issue subpoenas compelling the defendant or witnesses to attend to be examined under oath. Equity also created new rights by recognising trusts and giving beneficiaries rights against trustees. The common law did not recognise such a device and regarded the trustees as owners.

Moreover, equity created new remedies that were not available in the common law courts. These being: specific performance of a contract, rectification of a written document, rescission of a contract and the injunction an order requiring the person to whom it is addressed to perform or to refrain from performing a stated act. The later gave rise to discontent between the Chancellor and common law lawyers. Tensions began to develop between the separate systems of law and equity. This came to head in the Earl of Oxfords Case (1616) where the Lord Chancellor, Lord Ellesmere, issued an injunction out of the Chancery prohibiting the enforcement of a common law judgement issued by Sir Edward Coke, the Chief Justice of the Kings Bench. The two courts became locked in a stalemate, and the matter was eventually referred to the Attorney-General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail.

As equity developed it had no fixed rules of its own, with the Chancellor occasionally judging in the main according to his own conscience. This led to criticism on the outcome of cases and John Selden, an eminent seventeenth century jurist famously declared, Equity varies with the length of the Chancellors foot. The rules of equity later lost much of their flexibility, and by the ninetenth century equity was rapidly consolidated into a system of precedents much like the common law. At the same time the Court of Chancery was incapable of dealing with the increasing number of claims coming before it and a series of reforms were introduced increasing the number of judges. It was obvious that the presence of two systems of law with separate courts was higly inconvenient for litigants. So attempts were made to assimilate the remedies granted by the Court of Chancery and the common law courts. Accordingly, the Common Law Procedure Act 1854 and the Chancery Amendment Act 1858 made some of the procedural devices of the Court of Chancery (such as discovery of documents and injuctions) available in the common law courts, while allowing common law courts to consider equitable defences. They also empowered the Court of Chancery to decide questions of common law, receive oral evidence, detemine issues of fact by jury trial and award damages.

The Supreme Court of Judicature Acts of 1873 and 1875 further rationalised the position. It created one system of courts by amalgamating the common law courts and court of equity to form the Supreme Court of Judicature which administers both common law and equity. The consequence is a procedural fusion of law and equity and not a fusion of the principles of law and equity, which still remain as separate bodies of law today. Matters of both law and equity can now be determined in the course of one set of proceedings. If there is any conflict between rules of law and equity, the later will prevail. This being enshrined in section 25(11) of the Supreme Court of Judicature Act 1873 (now section 49 of the Supreme Court Act 1981).

The Supreme Court of Judicature today consist of the High Court divided into divisions know as the Queens Bench Division, Chancery Division and the Family Division (the later being renamed in 1970); the Court of Appeal; and, since the Supreme Court Act 1981, the Crown Court. Common law remedies are available as of right. Remedies in equity are discretionary, awarded at the will of the court, depending upon circumstances relating to the party claiming such remedies.

In conclusion, today equitable relief in the form of injunctions, specific performance, rectification and rescission are available to litigants in civil actions at the courts discretion along side common law remedies. In most instances however, there are likely to be differences between the operation of law and equity rather than conflict. For instance, different remedies may be available in respect of what both systems acknowledge to be a wrong (e.g. damages in common law and an injunction in equity in respect of a nuisance). Equity may impose additional obligations on a person while recognising his or her rights at common law (e.g. by accepting that a trustee is the legal owner of property while requiring him or her to hold it for the benefit of another). To agree with Maitland, the two streams have met and still run in the same channel, but their waters do not mix.

Editors Note: The above article should serve as a revision aid only and should not deter further academic research nor serve as a substitute for textbooks.


  • Smith, Bailey & Gunn, The Modern English Legal System, Fifth Edition.
  • Garry Slapper and David Kelly, The English Legal System, Fourth Edition
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