The development of equity

The development of equity as we know it today has taken almost a millennia, it all started when the Normans came over and William decided that all of England should be ruled under common law, it wasn't until the twelfth century that courts were created to apply the common law. Civil actions in these courts weren't treated how they are today, they had to start with a writ, this set the cause of action or the grounds for the claim to be made, and it was from this that the first types of writ were created.

Until the 13th century, a new writ was made to suit every new circumstance, but this was stopped as by this time, just about every type of case would of already been heard in the courts! Because the courts decided to stop a new writ being created every time a new circumstance was made, litigants had to find a writ that suited their case. If the case did not fit in with any of those writs then the case could not be brought to a common law court.

It was also at this time that the common law was also becoming very rigid and offered only damages as a remedy, this remedy wasn't always adequate though, as if someone tried to buy a piece of land, made arrangements with family and friends to move there, and then the person who was selling the land went back on his promise, the only remedy in court was damages, and this may not be the right solution because of all the arrangements made.

Since damages was the only remedy in a common law court, people started to petition the King, as he was thought to be a 'Fountain of Justice', but the King basically couldn't be bothered to think about all of the petitions and so gave them to his Chancellor. The Chancellor was usually part of a clergy and so was though of as the 'Kings Conscience'. It wasn't long until people started to realise that the Chancellor dealt with the petitions, and so they started to write to him directly, and by 1474, the Chancellor had begun to make decisions on the cases himself, this was the begging of the Court of Chancery.

This court was simple, the litigants came before the Chancellor, and then he would make a verdict based on his own moral view, he could basically produce any remedy he sees fit. As you can imagine the Court of Chancery became very popular to litigants, and very unpopular to common law layers, as the remedies depended on the Chancellor as each Chancellor may have had a different view of right and wrong. The common law layers resented the way that equity could restrict their own jurisdiction; the Chancellor could pass a common injunction preventing the exercise of a common law right.

N example of this may be that a litigant made a mistake in drawing up a document. Under common law the other party could enforce the document anyway, even if they were aware of the mistake but failed to draw attention to it. This was considered inequitable, and a common injunction would prevent the document being enforced. Some matters came to a head in 1615 in the Earls of Oxford Case where conflicting judgments of the common law courts and the Court of Chancery were referred to the king for a decision; he advised that where there was conflict equity should prevail.

Had this decision not been made, equity would be worthless, basically it could not do its role in filling in the gaps of common law unless it was dominant. Once equity became a body of law, courts were made for equity. This then made the Judicature Act of 1873-1875, this made the structure of the courts that we have today. With out this Act of Parliament, the court structure would still be only 1 type of court. When the Judicature Act came out, the roles of law and equity were not 'fused' together, only their administrations. There is still some equity that is distinct from common law; they act as an addition to law.

The same court implements both equity and law, but if there is conflict, equity still prevails. The 'new' hierarchy of courts has created a lot of advantages to many cases, and most notably are that now, instead of always being awarded damages like in the Court of Chancery, there are more remedies. Although both common law, and equity make rules developed from precedents, equity also created maxims, and these have to be satisfied before any equitable rules can be applied. These maxims were designed to make sure that every decision was morally right, these maxims are:

He who comes to equity must come with clean hands, this basically means that if the claimants have them selves done something wrong, they will not be granted an equitable remedy. An example of this is D & C Builders v Rees (1966) when a building company did some work on a house. When they asked for the total sum of money, the Rees were only prepared to offer a smaller amount than of that asked. Later the company sued the Rees, and when the Rees told the judge that they should apply the doctrine of equitable stoppable, the judge refused this and said that the Rees 'had not come with clean hands'

He who seeks equity must do equity, this means that anyone who seeks equitable relief must be prepared to act fairly towards their opponent. An example pf this is Chappell v Times Newspapers (1975) when a newspaper company threatened to sack some employees stopped their strike. The employees applied for an injunction to be carried out to prevent their employers to sack them, the courts said that in order for this remedy to be applied, then they must stop their strike in order for injunction to occur.

The employees refused this and so the injunction was refused Delay defeats equity, this means that if a claimant takes a really long time to bring an action to court equitable remedies will not be available. Leaf v International Galleries (1950) is an example of this, the claimant bought a painting from the galleries only to find out 5 years later that it was a fake, when he tried to sue the galleries, the judge said that the delay had been to long Equity has shown itself capable of adapting and expanding to meet new needs, and so creating law reform.

During the 1950s and 60s, equity responded to a martial breakdown by stating that a deserted wife could acquire an equitable interest in the family home, this was soon passed in the form of the Matrimonial Homes Act of 1967. In the 1970s extending the scopes of injunction – the Anton Pillar Order and the Mareva injunction, created two new remedies. Equity is basically changing on a yearly bases, and this is because of the all the new cases coming to courts, with all of the new inventions and the new things that are being created everyday, equity has to change to keep up with modern times and modern thinking.