Have Law and Equity Influenced Each Other?

November 2, 2017 Law


Table of Cases

Bank of Boston Connecticut 5 European Grain and Shipping Ltd

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Cardinal London Property Trust Ltd v High Trees House Ltd

Cresswell V Potter ( 1978 ) 1 WLR 255

Cuckmere Brick Co Ltd v Mutual Finance Ltd

Earl of Oxford’s Case ( 1615 ) 1 Rep Ch 1

Napier and Ettrick ( Lord ) v Hunter

Tinsley V Milligan

United Scientific Holdings V Burnley Borough Council

Walsh V Lonsdale

Table of Legislative acts


Supreme Court Act 1981

Supreme Court of Judicature Act 1873 ( 36 & A ; 37 Vict C. 66 )

Supreme Court of Judicature Act 1875 ( 38 & A ; 39 Vict C. 77 )

‘‘Neither jurisprudence nor equity is now stifled by its beginning and the fact that both are administered by one Court has necessarily meant that each has borrowed from the other in fostering the harmonious development of the jurisprudence as a whole’’ [ 1 ]

In Order to critically measure the truth of the above statement and to enable an analysis of the comparative strengths of the ‘dualism’ and ‘fusion’ argument, in order to organize a cogent narrative it will be necessary to briefly explore both the definitions, history, differentiations and development of common jurisprudence and equity.

First, whilst definitions of the ‘Common Law’ system differ it can be defined as the ‘general law’ which is common to the kingdom, and besides the organic structure of jurisprudence which has evolved by Judgess from case in point. [ 2 ] Furthermore the definition of Equity in common idiom translates to fairness/justice ( aequitas equitas ) . Although harmonizing to S Worthington, ‘ [ … ] even the most experient of attorneies finds it hard to give a short, apprehensible reply to the inquiry ‘What is equity? ’ [ 3 ] However, an facile definition was stated in Cresswell v Potter [ 4 ] ‘The jurisprudence which modifies the general common jurisprudence regulations where the general regulations cause practical adversity in a peculiar instance ( restrains the conscienceless exercising of rights or powers at common jurisprudence ) ’ .

Prior to the Norman Conquest in 1066 England had no functional ‘common jurisprudence ‘ which was systematically applied to the whole of the kingdom, there existed merely casual unwritten regulations and imposts which were wide-ranging between different states, [ 5 ] for illustration the ‘Jutes in the South holding different Torahs to the Mercian’s’ along with informal assemblages and mediaeval Trials [ 6 ] . However, even station Norman Conquest the ‘Leges Henrici Primi ( c.1118 ) ’ documented disconnected legal codifications and legal powers such as Mercian, Danelaw and Wessex jurisprudence. [ 7 ]

During the undermentioned three centuries post Norman Conquest ( 1066 ) the precedence became the constitution of a strong ‘Common law’ cardinal to the kingdom chiefly to safeguard ‘Royal revenues’ [ 8 ] , which led to Royal minister plenipotentiaries take parting in local tribunals, such as the ( the Curia regis ) by the 13th century the Common Law tribunals of King’s Bench, the Court of Exchequer and the Court of Common Pleas were established. [ 9 ] During the reign of Henry II who has been credited with chiefly bring forthing the promotion of the common jurisprudence [ 10 ] with the royal envoys ‘justiciae errantes ( rolling justnesss ) ’ [ 11 ] .

However, the common jurisprudence was non without mistakes as the writ system was proficient, inflexible and compounded by the commissariats of Oxford 1258 and the legislative act of Westminster led to unfairnesss. [ 12 ] Nevertheless, by the Fourteenth Century those who felt aggrieved could appeal to the King’s scruples for a redress, nevertheless the function was passed to the Lord Chancellor as ‘Keeper of the Kings conscience’ due to the volume of entreaties, with determinations based indiscriminately on ‘conscience’ . This led to one of the historic unfavorable judgments of its application as arbitrary, as famously quoted by Jurist John Selden, ‘Equity varies with the length of the Chancellor ‘s foot’ [ 13 ] .

Over the following few century’s turning clash between equity and the common jurisprudence tribunals increased, as the ‘Court of Chancery acted as a cheque upon the common jurisprudence guaranting that their application did non take to a manifest injustice’ [ 14 ] .This struggle dramatically reached its link in the Earl of Oxford ‘s Case [ 15 ] with the difference being settled in 1616 by James I with the Court of Chancery deriving domination.

Lord Ellesmere Stated,

“ men’s actions [ … ] diverse and space that it is impossible to do any

General jurisprudence which will [ … ] meet with every specific and non neglect in some

Fortunes. The office of the Chancellor is to rectify men’s scrupless for

fraud, breaches of trust, wrongs and subjugations [ … ] and to soften and pacify the appendage of the jurisprudence. ” [ 16 ]

This gave rise to the just axiom ‘that where the jurisprudence and equity struggle, equity prevails’ [ 17 ] this rule was subsequently given statutory authorization under subdivision 25 [ 18 ] and re-enacted under subdivision 49 [ 19 ] after The three common jurisprudence tribunals and the Court of Chancery were merged into a individual Supreme Court, comprising of the High Court and the Court of Appeal. Under the Judicature Acts [ 20 ] leting ‘The legal power of Judgess in the new Supreme Court was ‘fused ‘ , this reduced holds and disbursal of get downing separate actions as now all Judgess were able to utilize the whole scope of common jurisprudence and just rules’ [ 21 ] .

There remains a well combative argument between legal bookmans that has thundered on for good over one hundred and thirty old ages, as to whether the common jurisprudence and equity are genuinely amalgamate, either on a substantial or procedural degree, those who believe in the dualist ‘fusion fallacy’ philosophy and even those who conclude whether they should be fused.

P.V Baker [ 22 ] provinces ‘that fusion [ … ] there is no differentiation [ … ] between legal rights, redresss and therefore can non be supported’ this position is reinforced by J Martin [ 23 ] who states the ‘Supreme Court act clearly, envisaged both equity and common jurisprudence would [ … ] separate existence’ and that Lord Brandon [ 24 ] stated that ‘important procedures’ changed, although no 3rd party rights were altered [ … ] or were intended to be [ 25 ] .

Although, polemically those who advocate ‘fusion’ suggest it is the ‘awarding of legal redresss for a breach of an just right’ [ 26 ] . However, P. Mason in Harris 5 Digital Pulse [ 27 ] did in a dissentient sentiment argue that it [ … ] ‘exposes the mistake of curtailing equity’s capacity to present compensation for violation of a right recognised in the pre-Judicature Act era’ mentioning Viscount Haldane’s address in Nocton V Lord Ashburton [ 28 ]

Furthermore, Walter Ashburner argues [ 29 ] from a procedural dualist point of view, that the court acts [ 30 ] merely fused the disposal of jurisprudence by ‘unifying Common jurisprudence and equity into one tribunal system’ , it did non blend the content of the two philosophies. The rules of equity and the rules of jurisprudence remained separate: of legal power, he likened both equity and the common jurisprudence to that of two watercourses which run side by side [ … ] nevertheless ‘never mingling’ their Waterss. Furthermore, Lord Diplock who has long been hailed as ‘the most forceful advocate of merger [ … ] ’ [ 31 ] argues in obiter [ 32 ] the merger of common jurisprudence and equity is more substantial and has already occurred with the ‘streams’ of equity and the common jurisprudence [ … ] long since mingled together’ .

In add-on Lord Diplock went so far as to province that Ashburner’s metaphorical use was both ‘mischievous and deceptive’ [ 33 ] . Nevertheless, Meagher, Heydon and Leeming [ 34 ] who are amongst the strongest protagonists of dualism. Maintain that the determination in the United Scientific [ 35 ] as non merely ‘the low H2O grade of modern English jurisprudence’ and the speculation that lord Diplock believing [ … ] ‘the Statutes of Uses [ … ] of Quia Emptores played no modern-day portion in English belongings law.’ [ 36 ]

“The merger false belief involves the disposal of a redress, for illustration common jurisprudence amendss for breach of fiducial responsibility, non antecedently available at jurisprudence or in equity, or in the alteration of rules in one subdivision of the legal power by constructs that are imported from the other and therefore are foreign, for illustration by keeping that the being of a responsibility in civil wrong may be tested by inquiring whether the parties concerned are in fiducial relationships” [ 37 ]

However, there is apparently an agreement with Lord Diplock as Lord Denning M.R. who suggests a deeper merger between equity and common jurisprudence which would propose that it has been fused for a considerable clip. ‘When jurisprudence and equity have been joined together for over 70 old ages, rules must be considered in the visible radiation of their combined effect’ . [ 38 ] Furthermore, Peter Sparkes suggests, the ‘doctrine of Walsh v Lonsdale’ [ 39 ] . ‘that an understanding for a rental is every bit good as a lease’ . And cites Jessel MR, ‘equitable regulation predominating [ … ] He appeared to adopt a true fusion’ [ 40 ] . And went on to reason that changing efforts to ‘distort the determination and the old procedure’ in order to ‘make it fit’ with Ashburners procedural dualist point of view, although in Sparkes sentiment in world it could ‘only be explained as an illustration of true fusion’ [ 41 ] .

It would on the face of it seem anomalous that a incorporate tribunal with legal power over both common jurisprudence and equity would purely continue an historical differentiation between them [ 42 ] and that it would propose it would necessarily ensue in merger [ 43 ] The ‘fusion of jurisprudence and equity is frequently categorised as if they were fact’ [ 44 ] albeit that the reforms brought approximately by the Judicature Acts have clearly fused their disposal. However, no new evidences of ‘action, redress or defense mechanism have been created’ [ 45 ] as the Judicature Act was intended to free the jurisprudence of unneeded hold convergence and complication [ 46 ]

Furthermore, Andrew Burrows argues for more ‘fusion’ so “ We do this at common jurisprudence and we do the same at equity ” [ 47 ] to boot taking history of Baker’s definition of ‘fusion’ ‘there is no differentiation [ … ] between legal rights, redresss [ … ] ’ [ 48 ] this combined with David Hughes ‘arguments counter to the fusion’ of common jurisprudence and equity such as ‘Courts missing the power to blend common jurisprudence and equity’ , and asseverating that this would be exerting a ‘radical jurisprudence reform brief’ . [ 49 ] Remain ‘compelling as [ … ] still deny the handiness of a common jurisprudence redress for an just wrong’ . [ 50 ]

Similarly, Jill Martin suggests, that the Courts of England and Wales have non followed other Commonwealth legal powers who appear to back up and promote the construct that the court Acts have in some manner ‘fused’ common jurisprudence and equity substantively, such as is suggested in instances like United Scientific Holdings Ltd [ 51 ] and Cuckmere Brick Co Ltd [ 52 ] and have alternatively conversely reinforced the more Orthodox position apparent from ‘mortgage cases’ and determinations of the ‘House of Lords’ such as Napier v Hunter [ 53 ] and Tinsley v Milligan [ 54 ] which contain ‘meticulous analyses of the separate common jurisprudence and just beginnings and rules in countries such as subrogation and illegality’ [ 55 ] .

Consequently, in the context of the jurisprudence in England and Wales and based on the in depth critical analysis of the ‘fusion V dualism’ argument the overall comparative strength of the dualism statement is extremely declarative that although there is administrative ‘fusion’ , it is apparent that common jurisprudence and equity are still non ‘fused’ in the substantial sense therefore, even with a high grade of harmonization there has been no existent synthesis between the common jurisprudence and equity station court Acts, and although the Courts can and make use both regulations to common jurisprudence and equity as competently illustrated by the axiom, ‘Equity follows the law’ “only in instances when there is an of import context disregarded or if the common jurisprudence is used in an conscienceless manner that equity interferes.” [ 56 ] . Furthermore, as to the truth of the statement above [ 57 ] Gary Watt elucidates rather compactly that ‘nowadays this drumhead finds overall approval’ [ 58 ] from most quarters due to harmonization and development in both the common jurisprudence and equity.



Alastair H and Hudson A, Equity and Trusts ( Routledge Cavendish 2009 )

Arnold-Baker C, The Companion to British History, S.v. ‘English Law’ ( Loncross Denholm Press 2008 )

Ashburner W, Ashburner’s Principles of Equity. ( 2nd edn, Butterworth 1933 )

Atkins S, Equity and Trusts ( Routledge 2013 )

Baker P and Langan P, Snell’s Principles of Equity ( 29th edn, Sweet & A ; Maxwell 1990 )

Baker PV, Snell’s Equity ( 23rd edn, Sweet & A ; Maxwell, London 1990 )

Clement R and Abass A, Equity & A ; Trusts, Text, Cases and Materials ( 2nd edn, Oxford University Press 2011 )

Equity and Trusts Law Directions, Fourth Edition, Gary Watt, 2014 Oxford University Press

Equity and Trusts, Scott Atkins, 2013, Routledge

Heydon JD, Gummow WMC and Austin RP, Cases and Materials on Equity and Trusts ( 4th edn, Butterworths 1993 )

Hudson A, Equity and Trusts ( Routledge Cavendish 2012 )

Kelly D and Slapper G, The English Legal System ( 11th edn, Routledge 2010 )

Maitland F, Selected Historical Essays of F W Maitland: Chosen and Introduced by H M Cam ( 1957 ) 134

Martin E and Law J, A Dictionary of Law ( Oxford University Press, USA 2006 )

Martin J and Hanbury, Modern Equity ( Sweet & A ; Maxwell 2009 )

McDonald I and Street A, Equity & A ; Trusts Concentrate: Law Revision and Study Guide ( Oxford University Press 2014 )

McDonald I and Street A, Equity & A ; Trusts Concentrate: Law Revision and Study Guide ( Oxford University Press, USA 2011 )

McGhee J, Snell’s Equity ( Sweet & A ; Maxwell )

Meagher R and Heydon J, Meagher, Gummow and Lehane’s Equity, Doctrines, and Remedies ( Butterworths LexisNexis 2002 )

Meagher R, Heydon JD and Leeming M, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies ( 4th edn, 2002 ) 2-105

Plucknett TF, A Concise History Of The Common Law ( Liberty Fund 1956 )

Simpson AWB, ‘the Survival of the Common Law System ; Then and Now’ ( Sweet & A ; Maxwell 1974 )

Stenton LDM, English Justice Between the Norman Conquest and the Great Charter, 1066-1215 ( 1st edn, Allen & A ; Unwin 1964 )

Thurston, A Practitioner’s Guide to Trusts ( Bloomsbury Professional 2006 )

Todd and Watt’s Cases & A ; Materials on Equity and Trusts, 9thEdition, 2013, Oxford University Press, Gary Watt

Toomer GJ, John Selden: A Life in Scholarship ( Oxford, OUP 2009 )

Watt G, Equity and Trusts Law Directions ( Oxford University Press )

Watt G, Todd and Watt’s Cases and Materials on Equity and Trusts ( Oxford University Press, USA 2007 )

Wilson S, Todd & A ; ; Wilson’s Textbook on Trusts ( Oxford University Press 2013 )

Worthington S, Equity ( 2nd edn, OUP 2003 )

Journal Articles

Baker P. , ‘Future of Equity’ , ( 1977 ) 93 Law Quarterly Review 529 – 540 & lt ; hypertext transfer protocol: //www.heinonline.org.ergo.glam.ac.uk/HOL/Index? index=journals/lqr & A ; collection=journals & gt ; accessed 12 November 2014

Burns F, ‘The Fusion Fallacy Revisited’ ( 1993 ) 5 Bond Law Review

Burrows A, ‘We Do This At Common Law But That In Equity’ ( 2002 ) 22 Oxford Journal of Legal Surveies

Chesterman S, ‘Beyond Fusion Fallacy: The Transformation of Equity and Derrida’s “The Force of Law”’ ( 1997 ) 24 JOURNAL OF LAW AND SOCIElY 350


James E, ‘A “Fusion Fallacy” Fallacy? ’ ( 2003 ) 119 Law Quarterly Review 375-380

Jho R, ‘The “Fusion Fallacy”between Equity and Common Law: A Criticle Analysis’ ( 2014 ) 56 NSWLR hypertext transfer protocol: //racheljho.files.wordpress.com/2014/04/the-fusion-fallacy-between-equity-and-common-law.pdf

Martin J, ‘Fusion, Fallacy and Confusion ; a Comparative Study’ [ 1994 ] Conveyancer and Property Lawyer

Sparkes P, ‘WALSH V LONSDALE THE NON-FUSION FALLACY’ ( 1988 ) 8 Oxford Journal of Legal Surveies

Tilbury M, ‘Fallacy or Furphyaˆ? : Fusion in a Court World’ ( 2003 ) 26 ( 2 ) U.N.S.W. Law Journal 357

Web sites

‘Judges and the Law’ & lt ; hypertext transfer protocol: //www.open.edu/openlearn/society/the-law/judges-and-the-law/content-section-2.1 & gt ; accessed 12 November 2014

‘Legislation.gov.uk’ & lt ; hypertext transfer protocol: //www.legislation.gov.uk/ukpga/1981/54/section/49 & gt ; accessed 12 November 2014

‘TheNationalArchives’ hypertext transfer protocol: //www.nationalarchives.gov.uk/pathways/citizenship/citizen_subject/law.htm & gt ; accessed 11 November 2014


Bank of Boston Connecticut 5 European Grain and Shipping Ltd

Cardinal London Property Trust Ltd v High Trees House Ltd

Cresswell V Potter ( 1978 ) 1 WLR 255

Cuckmere Brick Co Ltd v Mutual Finance Ltd

Earl of Oxford’s Case ( 1615 ) 1 Rep Ch 1

Napier and Ettrick ( Lord ) v Hunter

Tinsley V Milligan

United Scientific Holdings V Burnley Borough Council

Walsh V Lonsdale

Legislative acts

Supreme Court Act 1981

Supreme Court of Judicature Act 1873 ( 36 & A ; 37 Vict C. 66 )

Supreme Court of Judicature Act 1875 ( 38 & A ; 39 Vict C. 77 )



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