Equity XII

Despite the merits of having a dual court system, i.e. an additional or a higher court, where a genuinely aggrieved litigant could have his or her concerns addressed, it nonetheless did create a certain amount of confusion. The law as far as possible has to be transparent and every citizen, where possible, should be aware of his or her rights, and should a matter go to trial, the litigants should be able to some degree predict the outcome.

To remedy the shortcomings of the dual system and to create some form of uniformity, parliament passed the Judicature Acts of 1873 and 1875.

Under the 1873 Act the old higher courts were abolished and a new Supreme Court of Judicature was created consisting of the High Court of Justice and the Court of Appeal. The High Court was divided into five specialist divisional courts based on the old central courts (King’s Bench, Common Pleas, Exchequer, and Chancery), with the addition of the new Probate, Divorce and Admiralty division. Equity was administered by the Court of Chancery and any litigant seeking an equitable remedy post the implementation of the 1873 and 1875 acts could bring his or her claim before the Chancery Division of the High Court.

Copyright © 2019 by Dyarne Jessica Ward

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Equity XI

Equity, if anything, seeks to achieve a balanced legal system by remedying the defects of the common law and this aspect of equity is defined by the German philosopher Hegel (Georg Wilhelm Friedrich Hegel, 1770 – 1831).

“Equity involves a departure from formal rights owing to moral or other considerations and is concerned primarily with the content of the lawsuit. A court of equity, however, comes to mean a court which decides in a single case without insisting on the formalities if a legal process or, in particular, on the objective evidence which the letter of the law may require. Further, it decides on the merits of the single case as a unique one, not with a view to disposing of it in such a way as to create a binding legal precedent for the future.”

In short equity decides each case on its merits, taking into account what is fair and just, and does not create and nor does it intent to create, a binding precedent.

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Equity X

To restrict oneself to common law or statutes, without taking into account the evolution of the English Legal System, and without having a clear and concise view of English history, would be to adopt an overly simplistic approach.

English Law as it is today is not a result of an act or a series of acts but rather a culmination of numerous events that started well before 1066 and whatever the situation may be today, we have to understand its roots and its origins in order for us to acquire a comprehensive understanding, not only of the English Legal System, but also of the spirit of the law, i.e. the true motivation behind laws (theoretically speaking) which is the need to do what is good and right and the notion that right must always prevail over wrong or to take it a step further, good must always prevail over evil which goes back to the tenets of the Christian Church.

The Law obviously has to change with time to meet the needs of the people but the fundamentals are always more or less the same.

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Equity IX

Those that were disappointed or those that were denied justice however were not without recourse and they began petitioning the king who is the highest authority in the kingdom appealing to his sense of justice and fair-play. Equity itself is synonymous to justice and fair-play and the word simply means fair and impartial.

Initially the king dealt with the petitions himself but as the number of petitions increased the task was delegated to the Chancellor who became known as the keeper of the king’s conscious. When a litigant seeks an equitable remedy, he or she is in fact appealing to the conscious of the king. The Chancellor, on behalf of the king, decided the cases on what was morally right, and it would be fair to say that equity blurs the lines or the distinction between what is morally right and legally right and while it is common enough to hear people say that what is morally wrong is not legally wrong, English Law is not so cut and dry especially in cases and instances that concern minors, or where there is clear evidence of oppressive or suppressive behavior.

It is important to note that because equity came about to remedy the inability of the common law to provide a just and fair solution, if there is a conflict between common law and equity, equity will prevail. This is simply because, more than anything, equity is concerned only with what is right.

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Equity VIII

With the advent and subsequent stifling of the writ system, defects in the common law, the principle that like cases should be treated in like manner, became more apparent.

For starters judges and juries adhered too strictly to precedent and decided in line with past cases, without taking into account other facts and factors regardless of how compelling they were.

Furthermore, the process of jury vetting at the time did not exist or was not as comprehensive as it is today, and members of the jury were at times prone to be corrupt and were not averse to intimidating the parties at a trial.

In terms of remedies the only remedy that was available was damages and remedies like specific performance and injunctions (equitable remedies) were not available.

In addition to that the process was overly lengthy with too much attention being paid to what was written and what was not, and the common law courts did not recognize trusts.

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Equity VII

In 1285 the Statute of Westminster II (De Donis Conditionalibus) authorized clerks to issue writs but it was with regards to Writs of Formendon which restricted the sale of land that is inherited and protects the land from being sold, in the form of a trust, and causes it to pass automatically to a heir predetermined by a deed.

While it did complicated matters somewhat (a large portion of the cases that were dealt with at the time were with regards to land) it did protect the rights and the interests of the predetermined heir, especially in cases and instances where the intended heir was a minor, and we also have to look at it in light of the fact that many of the feudal landowners were involved in the crusades (1021 – 1291) at the time, and often left behind young heirs.

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Equity VI

Because of the drawbacks of the writ system, in 1258, the Provisions of Oxford were issued, which expressly forbade the issue of new writs without the permission or consent of the King in Council.

The start of the Provisions of Oxford 1258 reads as follows: –

It has been provided that from each county there shall be elected four discreet and lawful knights who, on every day that the county is held [i.e. the county court], shall assemble to hear all complaints touching any wrongs and injuries inflicted on any persons by sheriffs, bailiffs, or any other men, and to make the attachments that pertain to the said complaints until the first arrival of the chief justiciar in those parts: so that they shall take from the plaintiff adequate pledges for his prosecution, and from the defendant for his coming and standing trial before the said justiciar on his first arrival; and that the four knights aforesaid shall have all the said complaints enrolled, together with their attachments, in proper order and sequence — namely, for each hundred separately and by itself — so that the said justiciar, on his first arrival, can hear and settle the aforesaid complaints singly from each hundred.

To read the full text please click on the link below: –

The Provisions of Oxford 1258

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Equity V

Over time the judges began to develop a writ system i.e. they issued a written order compelling an individual to take specific action and only allowed individuals remedy under certain circumstances or certain instances.

The writ system however was too simplistic and there were no remedies that were available if the offence did not comply with what constitutes an offence as stipulated by a writ and therefore a plaintiff though he may have been genuinely aggrieved, may not be able to obtain a remedy because the offence was not committed in the manner that was stipulated or laid out in the writ.

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Equity IV

During the reign of Richard I or Richard the Lionhearted, in 1195, the office of “Knights of Peace” was created through a Royal Proclamation. King Richard spent most of his life in the crusades and was probably its most notable commander especially in the Third Crusade.

It would be to some degree or extent fair to say that most of King Richard’s decisions were based on the canons of the Christian Church.

The office of the “Knights of Peace” was created to assist the sheriffs, who were tasked by the king to keep the peace in their respective shires or counties on behalf of the king and these sheriffs had some judicial authority and were give the duty of not only enforcing the law but were also empowered to deal with minor crimes.

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