Have Law and Equity Influenced Each Other?

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1 Table of Cases Bank of Boston Connecticut v European Grain and Shipping Ltd Central 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 Statutes Bills Supreme Court Act 1981 Supreme Court of Judicature Act 1873 (36 & 37 Vict C. 66) Supreme Court of Judicature Act 1875 (38 & 39 Vict C. 77) ‘‘Neither law nor equity is now stifled by its origin and the fact that both are administered by one Court has inevitably meant that each has borrowed from the other in furthering the harmonious development of the law as a whole’’[1] In Order to critically evaluate the accuracy of the above statement and to enable an analysis of the relative strengths of the ‘dualism’ and ‘fusion’ debate, in order to form a cogent narrative it will be necessary to briefly explore both the definitions, history, distinctions and development of common law and equity.

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Firstly, whilst definitions of the ‘Common Law’ system differ it can be defined as the ‘general law’ which is common to the realm, and also the body of law which has evolved by judges from precedent.[2] Moreover the definition of Equity in common parlance translates to fairness/justice (aequitas equitas). Although according to S Worthington, ‘[…] even the most experienced of lawyers finds it difficult to give a short, intelligible answer to the question ‘What is equity?’[3] However, an eloquent definition was stated in Cresswell v Potter[4] ‘The law which modifies the general common law rules where the general rules cause practical hardship in a particular case (restrains the unconscionable exercise of rights or powers at common law)’. Prior to the Norman Conquest in 1066 England had no functional ‘common law’ which was consistently applied to the whole of the realm, there existed only cursory oral rules and customs which were wide-ranging between different provinces,[5] for example the ‘Jutes in the South having different laws to the Mercian’s’ along with informal gatherings and medieval Tests[6]. However, even post Norman Conquest the ‘Leges Henrici Primi (c.1118)’ documented fragmented legal codes and jurisdictions such as Mercian, Danelaw and Wessex law.[7] During the following three centuries post Norman Conquest (1066) the priority became the establishment of a strong ‘Common law’ central to the realm mainly to safeguard ‘Royal revenues’[8], which led to Royal envoys participating in local courts, such as the (the curia regis) by the thirteenth century the Common Law courts 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 principally generating the advancement of the common law[10] with the royal envoys ‘justiciae errantes (wandering justices)’[11].

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