Main Continuing Source of Conflict in the English Government

ORIGINS OF COMMON LAW

Customs are rules of behaviour, which develop in a community without being deliberately invented, and of two main types: general customs and local customs.

A brief introduction of how the Norman Conquest and the formation of common law is linked:

William the Conqueror, also known as William the Bastard from Normandy (France), fought with King Harold (the last pure English king) and won the Battle of Hastings.
William claimed all land of England as his – he applied feudalism by distributing land to nobles.
The Norman kings realised that control of the country would be easier if they controlled, among other things, the legal system.
The first Norman king, William the Conqueror, set up the Curia Regis (the King's Court) and appointed his own judges.
The nobles who had a dispute were encouraged to apply to have the king (or his judges) decide the matter.
The king sent his itinerant justices to go around the country to collect taxes and adjudicate (to judge) disputes.
In the time of Henry II (1154-89), these tours became more regular and Henry divided up the country into 'circuits' or areas for the judges to visit.
Then, the itinerant judges chose the best customs among the other differing customs of different towns to form common law – which was applied uniformly throughout the country.

DEFINITIONS OF COMMON LAW

Common law is the basis of our law today: it is unwritten law that developed from customs and judicial decisions. Some countries like French or Germany use civil law system. But the common law has been used since the ancient times in England.

Common law is based on principle of "stare decicis".

William Black Stone wrote: "Common law was found in the records of courts of courts of justices in book of reports in judicial decisions and handed down to from the ancient time. Common law met the needs of people once, but found inefficient because it did not change along with the progress of the society."

Judicial decisions are forms of legal decisions given by a judge or panel during a legal dispute.

Statute is a written law passed by a legislative body, normally referring to the Parliament.

E.g. murder and theft:

Murder is a common law crime, which it is not written in any Act of Parliament, or statutes. However it is considered as illegal due to the fact that it is an unwritten law that developed from customs and judicial decisions.
Theft is a statutory crime, since it is defined by a parliamentary statute, Theft Act 1968.

Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the King's Courts) and the rules of equity, which were developed, by the Lord Chancellor and the Chancery courts.

DEFECTS OF COMMON LAW

1. Writ system

The Lord Chancellor – known as the chancery, started all actions in the common law via the issuing of writs. Each wrong was assigned a writ. The wrong must fit the writ available in order to have a successful application. If the wrong did not fit the writ, an action will not be started.

2. Provisions of Oxford 1258

Common law court judges are inhibited from creating a new writ according to this statutory law. So many wrongs suffered without remedies.

3. Monetary payment only

Common law only provides monetary compensation. In some cases this would not be the best method of putting matters right between the parties. E.g. trespass to land: In a case of trespass to land, where perhaps the defendanthad built on his neighbour's land, the building would still be there and the plaintiffwould have lost the use of that part of his land. In such cases, the plaintiff would probably prefer to have the building removed, rather than be given money in compensation.

4. Look at the form instead of intention

Common law only looks at the form (contract details etc.) but the intention behind the crime or case.

5. Corruption and intimidation of juries

Juries can be intimidated or bribed to support a certain judgment.

CREATION OF EQUITY

Historically and till today, equity is an important source that plays a part with many of our legal concepts.

The word 'equity' has a meaning of 'fairness', and this is the basis on which it operates, when adding to our law. The word "equity" means rules developed to solve the defects of common law.

Equity developed because of the flaws in the common law. Only certain types of cases were recognised. People who could not obtain justice in the common law courts appealed directly to the king. Most of these cases were referred to the King's Chancellor, who was both a lawyer and a priest, and who became known as the "keeper of the king's conscience". This was because the Lord Chancellor's duty is to "establish the truth and to ensure justice without undue adherence to technicalities and procedures.

To ensure that the decisions were 'fair' the Chancellor used new procedures such as subpoenas, which ordered a witness to attend court or risk imprisonment for refusing to obey the Chancellor's order. He also developed new remedies, which were able to compensate plaintiffs more fully than the common law remedy of damages. These were called equitable remedies.

Eventually a Court of Chancery under the control of the Chancellor came into being which operated these rules of fairness or equity.

Equity was not a complete system of law; it merely filled the gaps in the common law and softened the strict rules of the common law.

Conflict between common law and equity

The two systems of common law and equity operated quite separately, so it was not surprising that this overlapping of the two systems led to conflict between them.

One of the main problems was that the common law courts would make an order in favour of one party and the Court of Chancery an order in favour of the other party.

The conflict was finally resolved in the Earl of Oxford's case (1615) when the king ruled that equity should prevail; in other words, the decision made in the Chancery court was the one which must be followed by the parties.

Earl of Oxford case
Merton College, Oxford has been granted a lease of Covent Garden for 72 years at £9 per year. 50 years later the college sold the lease to the Earl of Oxford at a rent of £15 per year. The college later tried to retake possession of it. It said that, an Elizabethan Statute prevented the sale of church or college lands. The Earl brought an action to eject the college from the land but failed due to common law. The Earl filled a bill of Equity. Lord Elesmere (Lord Chancellor) set aside the common law judgment 'not for any error or defect in judgment, but for the hard conscience of the parties'. When consulted, King James I decided that where there is a conflict between common law and equity, equity shall prevail.

This ruling made the position of equity stronger and the same rule was subsequently included in section 25 of the Judicature Act 1873.

The conflict was finally resolved by the Judicature Acts 1873-75:

The Lord Chancellor must be legally qualified.
All courts are now courts of common law and equity. Judges shall apply common law and if it is found to be insufficient, they may then apply equity.
There is now a well-established appellate system applying both common law and equity.
The role of the judiciary is not only limited to interpreting statues and applying them, but is also to find, extend, or create law.
When there is a conflict between common law and equity, equity shall prevail.
Remedies are still separate in nature.

EQUITABLE MAXIMS

Initially, there were few guidelines for Chancellors to use. However, as time went on a series of maxims were developed which formed the basis of the rules on which equity operated. Maxim is a broad statement of principle, the truth and reasonableness of which are self-evident. A rule of equity, the system of justice that complements the Common Law. As equity became more formal, judges became more likely to follow past decisions.

Today the doctrine of judicial precedent applies to cases involving equity, just as it applies to cases involving the common law.

Many of the rules on which equity is based are expressed in a series of sayings. The most important of these maxims are as follows:

1. He who seeks equity must do equity.

Chappell v Times Nenspapers Ltd
A group of workers led by Chappell took a strike action. Times Newspapers threatened that if they were to continue to do so they will face dismissal. The workers applied for injunction against dismissal. The court held that the plaintiffs had to be prepared to do equity, if they were telling the employers that they must keep to their part of their contract.

2. He who comes to equity must come with clean hands.

In other words an equitable principle or remedy will not granted to a plaintiff who has not acted fairly.

D & C Builders Ltd v Rees
A small building firm had done work for Mr and Mrs Rees. The total bill was £732 of which Mr and Mrs Rees had paid £250 in advance. When the builders asked for the remaining £482, the Rees, who knew the builders were in financial difficulties and needed money urgently, claimed that the work had not been done properly and they were only prepared to pay £300. The builders reluctantly agreed to accept the £300 'in completion of the account', but afterwards sued the Rees for the remaining £182. At common law, part payment of a debt is not considered as satisfying the debt and the builders could claim the extra. Equity, however, has a doctrine of equitable estoppel under which the courts can declare that the plaintiff is prevented from asking the rest. Lord Denning, in the Court of Appeal, refused to apply the doctrine of equitable estoppel because the Reeses had taken unfair advantage of the fact that they knew the builders were in financial difficulties. So far as equity was concerned the Reeses had not come to court with 'clean hands'.

3. Delay defeats equity.

This means that a plaintiff must not wait too long before making a claim as this might lead to unfairness to the other party.

Leaf v International Galleries
A plaintiff was sold a painting, which both parties mistakenly believed was by Constable J. The court did not award the equitable remedy of rescission, since there had been a delay of five years between the contract and the discovery that the painting was not by Constable.

Equity imposes responsibilities on its seeker to act fast.

4. Equity is equality.

Where two people have an equal right, the property will be divided equally.

5. Equity looks to the intention rather than the form.

Berry v Berry
A deed was held to have been altered by a simple contract.Under common law rules a deed could only be altered by another deed. But equity decided that as the parties had intended to alter the deed, it would be fair to look at that intention rather than the fact that they got the formalities wrong.

6. Equity acts in personam.

Equitable decrees were originally enforced against the person of the defendant (i.e. by imprisonment) and not against any property involved in the dispute. The defendant's property could be confiscated until he obeyed the decree. Today, the court can order a person to execute a document and if he does not do so, the court will appoint someone to execute it on his behalf.

7. Equity will not suffer a wrong to be without a remedy.

This allows equity to create new remedies where otherwise the plaintiff would not have an adequate remedy for the case and would only be able to claim the common law remedy of damages. This maxim allows equity to continue to develop new remedies when they are needed, such as freezing orders and search orders.

8. Equity acts on conscience.

9. Equity imputes on intent to fulfil an obligation.

10. Where there are equal equities, the common law shall prevail.

EQUITABLE REMEDIES

These remedies are discretionary, so that the court does not have to grant them even if the plaintiff wins the case. This is in contrast to the common law remedy of damages, which will be awarded to a winning plaintiff as of right. An equitable remedy will only be granted where the court thinks it is fair in all the circumstances.

If a party ignores an equitable remedy this is considered contempt of court and the court can fine that party or even send them to prison.

The following are the most important equitable remedies:

1. Injunctions

An injunction is an order to one of the people involved in the case to do something or not to do something.

Mandatory injunction: where the court orders one of the parties to do something.

Prohibitory injunction: where the order is to refrain from doing something A plaintiff may be awarded both damages and an injunction.

Interlocutory injunction: an injunction can also be granted to protect one party's rights while waiting for the case to be heard. Since the case has not been tried, the courts have strict guidelines on when an interlocutory injunction should be granted. Basically such an injunction will only be ordered if it is felt that, during the time that the parties have to wait for the case to be heard, one party would suffer irreparable harm which could not be put right by an award of damages at the end of the case.

Injunctions are often used today: they can be order in cases of domestic violence as a protection for the abused partner, which usually forbids the violent partner from entering the premises where the other partner is living or even going within a certain distance of the place.

It is also used to prevent trespass to land, or to prevent excessive noise, or smoke, or other nuisances.

They are used in employment law in various situations: a former employee can be prevented from disclosing trade secrets to anyone, or an injunction may be granted against a trade union to prevent unlawful industrial action.

Kennaway v Thompson
Noise and nuisance was caused by racing boats. The court granted an prohibitory injunction restricting the times when power boats could be raced on a lake. Compensation was given to the plaintiff for past problems.

Warner Brothers v Nelson
A prohibitory injunction was issued ordering the actress Bette Davis not to make a film with another film company as that would have been a breach of her contract with Warner Brothers.

2. Specific performance

This is an order that a contract should be carried out as agreed. It is granted only in exceptional circumstances where the court feels the common law remedy of damages could not adequately compensate the plaintiff, e.g. in a contract to purchase land.

Specific performance is never granted to order someone to carry out personal services, such as singing at a concert; nor it is granted for a breach of contract where one of the parties is a minor.

3. Rescission

This is another remedy in contract cases and it aims to return the parties as fair as possible to their precontractual position.

So, if a contract involved in buying goods was rescinded, the buyer would have to return the goods to the seller and the seller would have to return the purchase price to the buyer.

Dimmock v Hallet
A vendor of a land represented that all the forms on the land were fully let. The vendor falsely represented that he knew of no other facts, which would render that statement misleading. This was because he had knowledge that the tenants had given notice to quit.

4. Rectification

Under this the court will order that, where a mistake has accidentally been made in a document so that it is not a true version of what the parties agreed, that document should altered to reflect the parties' intention.

5. Quantum Meruit

Where there is a contract, instead of suing for damages, a plaintiff may claim for what he has done under contract. Whether there is a contract or not, it still works.

Planche v Colburn
The defendants engaged the plaintiffs to write a treatise for a periodical publication. The plaintiff commenced the treatise but before he had completed it, the defendants
abandoned the periodical publication. It was held that the plaintiff might sue for compensation without tendering or delivering the treatise.

EQUITY TODAY

Equity can still create new concepts in the law, which happened on a number of occasions in the 20th century.

Freezing order

Lord Denning MR developed the freezing order (formerly known as a Mareva injunction) and the search order (formerly known as an Anton Piller Order).

The freezing order can be made where there is a risk that one party in a case will move all their assets out of the United Kingdom before the case against them is tried. The effect of the order is that third parties (such as banks) who have assets owned by the party in their control must freeze those assets so that they cannot be removed from the account.

The freezing order was first used in the case of Mareva Compania Naviera SA v International Bulk Carriers SA, in order to have assets available to pay any damages or costs that the court awards.

Search order

The search order allows the claimant to search the defendant's premises and remove any documents or other material which could help the claimant to prove his case; first used in Anton Piller KG v Manufacturing Processes Ltd – entry, search and seizure order.

Mortgage

For example, A is facing financial difficulties. He transfers his property to B as security of payment. B will pay A money. A will then pay in instalments, the interest of the house. After 20 years, if A successfully paid all the interests, A will get the house back.

The concept of Equity of Redemption recognises the right of A to postpone payment for a set duration before officially giving up the right to redeem the property.

Trusts

Concept of Trust: For example, there is a father (testator/ settlor) who is going to die of a fatal illness soon. The father transfers his legal ownership of every property to the uncle (trustee). The uncle promises to return the ownership to his child once the time is right, as specified in a contract. The common law only recognises the legal title of the uncle. But the concept of Trust in Equity looks at the right of the child (beneficiary). So the child has an equitable title to claim his/her property when the terms of the contract have been fulfilled.

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Source: https://cielawtutor.com/english-legal-system/unit-1-sources-of-law/common-law-and-equity/