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 Oxfordâ€™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) â€˜â€˜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 wholeâ€™â€™
In Order to critically evaluate the accuracy of the above statement and to enable an analysis of the relative strengths of the â€˜dualismâ€™ and â€˜fusionâ€™ 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. Firstly, whilst definitions of the â€˜Common Lawâ€™ system differ it can be defined as the â€˜general lawâ€™ which is common to the realm, and also the body of law which has evolved by judges from precedent.
Moreover the definition of Equity in common parlance translates to fairness/justice (aequitas equitas). Although according to S Worthington, â€˜[â€¦] even the most experienced of lawyers finds it difficult to give a short, intelligible answer to the question â€˜What is equity?â€™
However, an eloquent definition was stated in Cresswell v Potter
â€˜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)â€™. 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,
for example the â€˜Jutes in the South having different laws to the Mercianâ€™sâ€™ along with informal gatherings and medieval Tests
. However, even post Norman Conquest the â€˜Leges Henrici Primi (c.1118)â€™ documented fragmented legal codes and jurisdictions such as Mercian, Danelaw and Wessex law.
During the following three centuries post Norman Conquest (1066) the priority became the establishment of a strong â€˜Common lawâ€™ central to the realm mainly to safeguard â€˜Royal revenuesâ€™
, which led to Royal envoys participating in local courts, such as the (the curia regis) by the thirteenth century the Common Law courts of Kingâ€™s Bench, the Court of Exchequer and the Court of Common Pleas were established.
During the reign of Henry II who has been credited with principally generating the advancement of the common law
with the royal envoys â€˜justiciae errantes (wandering justices)â€™
. However, the common law was not without faults as the writ system was technical, inflexible and compounded by the provisions of Oxford 1258 and the statute of Westminster led to injustices.
Nevertheless, by the Fourteenth Century those who felt aggrieved could appeal to the Kingâ€™s conscience for a remedy, however the role was passed to the Lord Chancellor as â€˜Keeper of the Kings conscienceâ€™ due to the volume of appeals, with decisions based randomly on â€˜conscienceâ€™. This led to one of the historic criticisms of its application as arbitrary, as famously quoted by Jurist John Selden, â€˜Equity varies with the length of the Chancellor's footâ€™
. Over the next few centuryâ€™s growing friction between equity and the common law courts increased, as the â€˜Court of Chancery acted as a check upon the common law ensuring that their application did not lead to a manifest injusticeâ€™
.This conflict dramatically reached its nexus in the Earl of Oxford's Case
with the dispute being settled in 1616 by James I with the Court of Chancery gaining supremacy. Lord Ellesmere Stated, "menâ€™s actions [â€¦] diverse and infinite that it is impossible to make any General law which will [â€¦] meet with every particular and not fail in some Circumstances. The office of the Chancellor is to correct menâ€™s consciences for fraud, breaches of trust, wrongs and oppressions[â€¦] and to soften and mollify the extremity of the law."
This gave rise to the equitable maxim â€˜that where the law and equity conflict, equity prevailsâ€™
this principle was later given statutory authority under section 25
and re-enacted under section 49
after The three common law courts and the Court of Chancery were merged into a single Supreme Court, comprising of the High Court and the Court of Appeal. Under the Judicature Acts
allowing â€˜The jurisdiction of judges in the new Supreme Court was 'fused', this reduced delays and expense of starting separate actions as now all judges were able to use the whole range of common law and equitable rulesâ€™
. There remains a considerably contentious debate between legal scholars that has thundered on for well over one hundred and thirty years, as to whether the common law and equity are truly fused, either on a substantive or procedural level, those who believe in the dualist â€˜fusion fallacyâ€™ doctrine and even those who conclude whether they should be fused. P.V Baker
states â€˜that fusion [â€¦] there is no distinction [â€¦] between legal rights, remedies and thus cannot be supportedâ€™ this view is reinforced by J Martin
who states the â€˜Supreme Court act clearly, envisaged both equity and common law would [â€¦] separate existenceâ€™ and that Lord Brandon
stated that â€˜important proceduresâ€™ changed, although no third party rights were altered [â€¦] or were intended to be
. Although, controversially those who advocate â€˜fusionâ€™ suggest it is the â€˜awarding of legal remedies for a breach of an equitable rightâ€™
. However, P. Mason in Harris v Digital Pulse
did in a dissenting opinion argue that it [â€¦] â€˜exposes the error of restricting equityâ€™s capacity to award compensation for infringement of a right recognised in the pre-Judicature Act eraâ€™ citing Viscount Haldaneâ€™s speech in Nocton v Lord Ashburton
Furthermore, Walter Ashburner argues
from a procedural dualist standpoint, that the judicature acts
only fused the administration of law by â€˜unifying Common law and equity into one court systemâ€™, it did not fuse the content of the two doctrines. The principles of equity and the principles of law remained separate: of jurisdiction, he likened both equity and the common law to that of two streams which run side by side [â€¦] however â€˜never minglingâ€™ their waters. Moreover, Lord Diplock who has long been hailed as â€˜the most forceful exponent of fusion [â€¦]â€™
argues in obiter
the fusion of common law and equity is more substantive and has already occurred with the â€˜streamsâ€™ of equity and the common law [â€¦] long since mingled togetherâ€™. In addition Lord Diplock went so far as to state that Ashburnerâ€™s metaphorical usage was both â€˜mischievous and deceptiveâ€™
. Nevertheless, Meagher, Heydon and Leeming
who are amongst the strongest supporters of dualism. Maintain that the decision in the United Scientific
as not only â€˜the low water mark of modern English jurisprudenceâ€™ and the conjecture that lord Diplock believing [â€¦] â€˜the Statutes of Uses [â€¦] of Quia Emptores played no contemporary part in English property law.â€™
â€œThe fusion fallacy involves the administration of a remedy, for example common law damages for breach of fiduciary duty, not previously available at law or in equity, or in the modification of principles in one branch of the jurisdiction by concepts that are imported from the other and thus are foreign, for example by holding that the existence of a duty in tort may be tested by asking whether the parties concerned are in fiduciary relationshipsâ€
However, there is seemingly an accord with Lord Diplock as Lord Denning M.R. who suggests a deeper fusion between equity and common law which would suggest that it has been fused for a considerable time. â€˜When law and equity have been joined together for over seventy years, principles must be considered in the light of their combined effectâ€™.
Furthermore, Peter Sparkes suggests, the â€˜doctrine of Walsh v Lonsdaleâ€™
. â€˜that an agreement for a lease is as good as a leaseâ€™. And cites Jessel MR, â€˜equitable rule prevailing [â€¦] He appeared to espouse a true fusionâ€™
. And went on to argue that varying attempts to â€˜distort the decision and the old procedureâ€™ in order to â€˜make it fitâ€™ with Ashburners procedural dualist standpoint, although in Sparkes opinion in reality it could â€˜only be explained as an example of true fusionâ€™
. It would on the face of it seem anomalous that a unified court with jurisdiction over both common law and equity would strictly preserve an historical distinction between them
and that it would suggest it would inevitably result in fusion
The â€˜fusion of law and equity is often categorised as if they were factâ€™
albeit that the reforms brought about by the Judicature Acts have clearly fused their administration. However, no new grounds of â€˜action, remedy or defence have been createdâ€™
as the Judicature Act was intended to rid the law of unnecessary delay overlap and complication
Moreover, Andrew Burrows argues for more â€˜fusionâ€™ so "We do this at common law and we do the same at equity"
additionally taking account of Bakerâ€™s definition of â€˜fusionâ€™ â€˜there is no distinction [â€¦] between legal rights, remedies [â€¦]â€™
this combined with David Hughes â€˜arguments counter to the fusionâ€™ of common law and equity such as â€˜Courts lacking the power to fuse common law and equityâ€™, and asserting that this would be exercising a â€˜radical law reform briefâ€™.
Remain â€˜compelling as [â€¦] still deny the availability of a common law remedy for an equitable wrongâ€™.
Likewise, Jill Martin suggests, that the Courts of England and Wales have not followed other Commonwealth jurisdictions who appear to support and encourage the concept that the judicature Acts have in some way â€˜fusedâ€™ common law and equity substantively, such as is suggested in cases like United Scientific Holdings Ltd
and Cuckmere Brick Co Ltd
and have instead conversely reinforced the more orthodox view apparent from â€˜mortgage casesâ€™ and decisions of the â€˜House of Lordsâ€™ such as Napier v Hunter
and Tinsley v Milligan
which contain â€˜meticulous analyses of the separate common law and equitable origins and principles in areas such as subrogation and illegalityâ€™
. Consequently, in the context of the law in England and Wales and based on the in depth critical analysis of the â€˜fusion v dualismâ€™ debate the overall relative strength of the dualism argument is highly indicative that although there is administrative â€˜fusionâ€™, it is evident that common law and equity are still not â€˜fusedâ€™ in the substantive sense therefore, even with a high degree of harmonisation there has been no actual synthesis between the common law and equity post judicature Acts, and although the Courts can and do apply both rules to common law and equity as aptly illustrated by the maxim, â€˜Equity follows the lawâ€™ â€œonly in cases when there is an important context disregarded or if the common law is used in an unconscionable way that equity interferes.â€
. Furthermore, as to the accuracy of the statement above
Gary Watt elucidates quite succinctly that â€˜nowadays this summary finds overall approvalâ€™
from most quarters due to harmonisation and evolution in both the common law and equity. Bibliography Books
Alastair H and Hudson A,Equity and Trusts (Routledge Cavendish 2009) Arnold-Baker C,The Companion to British History, S.v. â€˜English Lawâ€™ (Loncross Denholm Press 2008) Ashburner W,Ashburnerâ€™s Principles of Equity. (2nd edn, Butterworth 1933) Atkins S,Equity and Trusts (Routledge 2013) Baker P and Langan P,Snellâ€™s Principles of Equity (29th edn, Sweet & Maxwell 1990) Baker PV,Snellâ€™s Equity (23rd edn, Sweet & Maxwell , London 1990) Clement R and Abass A,Equity & 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 & Maxwell 2009) McDonald I and Street A, Equity & Trusts Concentrate: Law Revision and Study Guide (Oxford University Press 2014) McDonald I and Street A,Equity & Trusts Concentrate: Law Revision and Study Guide (Oxford University Press, USA 2011) McGhee J,Snellâ€™s Equity (Sweet & Maxwell) Meagher R and Heydon J,Meagher, Gummow and Lehaneâ€™s Equity, Doctrines, and Remedies (Butterworths LexisNexis 2002) Meagher R, Heydon JD and Leeming M,Meagher, Gummow and Lehaneâ€™s Equity: Doctrines and Remedies (4th edn, 2002) 2-105 Plucknett TF,A Concise History Of The Common Law (Liberty Fund 1956) Simpson AWB,â€˜the Survival of the Common Law System; Then and Nowâ€™ (Sweet & Maxwell 1974) Stenton LDM,English Justice Between the Norman Conquest and the Great Charter, 1066-1215 (1st edn, Allen & Unwin 1964) Thurston,A Practitionerâ€™s Guide to Trusts (Bloomsbury Professional 2006) Todd and Wattâ€™s Cases & 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 Wattâ€™s Cases and Materials on Equity and Trusts (Oxford University Press, USA 2007) Wilson S,Todd &; Wilsonâ€™s Textbook on Trusts (Oxford University Press 2013) Worthington S,Equity (2nd edn, OUP 2003) Journal Articles
Baker P., â€˜Future of Equityâ€™, (1977) 93 Law Quarterly Review 529 - 540 <http://www.heinonline.org.ergo.glam.ac.uk/HOL/Index?index=journals/lqr&collection=journals> accessed 12 November 2014 Burns F, â€˜The Fusion Fallacy Revisitedâ€™ (1993) 5 Bond Law Review Burrows A, â€˜We Do This At Common Law But That In Equityâ€™ (2002) 22 Oxford Journal of Legal Studies Chesterman S, â€˜Beyond Fusion Fallacy: The Transformation of Equity and Derridaâ€™s â€œThe Force of Lawâ€â€™ (1997) 24 JOURNAL OF LAW AND SOCIElY 350 Hughes DA, â€˜A CLASSIFICATION OF FUSION AFTER HARRIS V DIGITAL PULSEâ€™ 29(2) UNSW Law Journal 38 James E, â€˜A â€œFusion Fallacyâ€ Fallacy?â€™ (2003) 119 Law Quarterly Review 375-380 Jho R, â€˜The â€œFusion Fallacyâ€between Equity and Common Law: A Criticle Analysisâ€™ (2014) 56 NSWLR http://racheljho.files.wordpress.com/2014/04/the-fusion-fallacy-between-equity-and-common-law.pdf Martin J, â€˜Fusion, Fallacy and Confusion; a Comparative Studyâ€™  Conveyancer and Property Lawyer Sparkes P, â€˜WALSH V LONSDALE THE NON-FUSION FALLACYâ€™ (1988) 8 Oxford Journal of Legal Studies Tilbury M, â€˜Fallacy or FurphyÃ¢â‚¬Â¯: Fusion in a Judicature Worldâ€™ (2003) 26 (2) U.N.S.W. Law Journal 357 Websites
â€˜Judges and the Lawâ€™ <http://www.open.edu/openlearn/society/the-law/judges-and-the-law/content-section-2.1> accessed 12 November 2014 â€˜Legislation.gov.ukâ€™<http://www.legislation.gov.uk/ukpga/1981/54/section/49> accessed 12 November 2014 â€˜TheNationalArchivesâ€™ http://www.nationalarchives.gov.uk/pathways/citizenship/citizen_subject/law.htm> accessed 11 November 2014 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 Oxfordâ€™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 Statutes
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) 1
 (per Somer J, Elders Pastoral Ltd v Bank of New Zealand  2 NZLR 180 at 193).  Elizabeth Martin and Jonathan Law, A Dictionary of Law (Oxford University Press, USA 2006).  Sarah Worthington, Equity (OUP 2003).   1WLR 255) Theodore FT Plucknett, A Concise History Of The Common Law (Liberty Fund 1956).  â€˜Judges and the Lawâ€™ <http://www.open.edu/openlearn/society/the-law/judges-and-the-law/content-section-2.1> accessed 12 November 2014. â€˜The National Archivesâ€™ <http://www.nationalarchives.gov.uk/pathways/citizenship/citizen_subject/law.htm> accessed 11 November 2014.  Martin (n 2) 109.  Ibid 109.  Lady Doris Mary Stenton, English Justice Between the Norman Conquest and the Great Charter, 1066-1215 (1st edn, Allen & Unwin 1964)  Martin (n 2) 109.  David Kelly and Gary Slapper, The English Legal System (11th edn, Routledge 2010) GJ Toomer, John Selden: A Life in Scholarship (Oxford, OUP 2009).  Iain McDonald and Anne Street, Equity & Trusts Concentrate: Law Revision and Study Guide (Oxford University Press 2014).  (1615) 1 Rep Ch 1  Lord Ellesmere, in the Earl of Oxfords Case  1 Rep Ch 1  McDonald (n 13) 9.  Supreme Court of Judicature Act 1873 (36 & 37 Vict c. 66)  Supreme Court Act 1981  Supreme Court of Judicature Act 1873 (36 & 37 Vict c. 66) and the Supreme Court of Judicature Act 1875 (38 & 39 Vict c. 77)  McDonald (n 13) 9.  P. Baker, â€˜Future of Equityâ€™, (1977) 93 Law Quarterly Review 529 - 540 <http://www.heinonline.org.ergo.glam.ac.uk/HOL/Index?index=journals/lqr&collection=journals> accessed 12 November 2014.  Martin (n 22) 1.  ibid  Bank of Boston Connecticut v European Grain and Shipping Ltd  A.C. 1056 at p. 1109.  Rachel Jho, â€˜The â€œFusion Fallacyâ€between Equity and Common Law: A Criticle Analysisâ€™ (2014) 56 NSWLR <http://racheljho.files.wordpress.com/2014/04/the-fusion-fallacy-between-equity-and-common-law.pdf>.  Pty Ltd  NSWCA 10   AC 932  W Ashburner, Ashburnerâ€™s Principles of Equity. (2nd edn, Butterworth 1933).  Supreme Court of Judicature Act 1873 (36 & 37 Vict c. 66) and the Supreme Court of Judicature Act 1875 (38 & 39 Vict c. 77).  JD Heydon, WMC Gummow and RP Austin, Cases and Materials on Equity and Trusts (4th edn, Butterworths 1993) 27.  United Scientific Holdings v Burnley Borough Council AC 904 924-925.  ibid  Roderick Meagher, John Dyson Heydon and Mark Leeming, Meagher, Gummow and Lehaneâ€™s Equity: Doctrines and Remedies (4th edn, 2002) 2-105.  R Meagher and J Heydon, Meagher, Gummow and Lehaneâ€™s Equity, Doctrines, and Remedies (Butterworths LexisNexis 2002).  ibid  Ibid (n 34)  Central London Property Trust Ltd v High Trees House Ltd  KB 130.  (1882) 21 ch D 9.  PETER SPARKES, â€˜WALSH V LONSDALE THE NON-FUSION FALLACYâ€™ (1988) 8 Oxford Journal of Legal Studies 350.  ibid  AWB Simpson, â€˜the Survival of the Common Law System; Then and Nowâ€™ (Sweet & Maxwell 1974).  Ibid (n 26) 
Michael Tilbury, â€˜Fallacy or FurphyÃ¢â‚¬Â¯: Fusion in a Judicature Worldâ€™ (2003) 26 (2) U.N.S.W. Law Journal 357, 26 U.N.S.W.L.J. 357 2003.  Martin (n 22) 1.  ibid (n 13) 9.  A Burrows, â€˜We Do This At Common Law But That In Equityâ€™ (2002) 22 Oxford Journal of Legal Studies.  Baker (n 22)  Meagher (n 35) 2-320.  David A Hughes, â€˜A CLASSIFICATION OF FUSION AFTER HARRIS V DIGITAL PULSEâ€™ 29(2) UNSW Law Journal 38.  United Scientific Holdings v Burnley Borough Council AC 904 924-925.  Cuckmere Brick Co. Ltd. v. Mutual Finance Ltd  A.C. 904.  Napier and Ettrick (Lord) v. Hunter  2 W.L.R. 42.  Tinsley v. Milligan  3 All E.R. 65.  Jill Martin, â€˜Fusion, Fallacy and Confusion; a Comparative Studyâ€™  Conveyancer and Property Lawyer.  P Baker and P Langan, Snellâ€™s Principles of Equity (29th edn, Sweet & Maxwell 1990).  Ibid (n 1)  Gary Watt, Equity and Trusts Law Directions (Oxford University Press) 10.