6. Equity: definition, historical development, main principles, relation to common law

There are 2 meanings of this word. In ordinary language, equity simply means fairness, but in law it applies to a specific set of legal principles, which add to those provided in the common law.

The common law was developed after the Norman Conquest through the ‘itinerant justices’ traveling around the country and sorting out disputes. . By about the twelfth century, common law courts had developed which applied this common law. Civil actions in these courts had to be started by a writ, which set out the cause of the action or the grounds for the claim made, and there grew up different types of writ.

Litigants had to fit their circumstances to one of the available types of writ: if the case did not fall within one of those types, there was no way of bringing the case to the common law court. At the same time, the common law was itself becoming increasingly rigid, and offered only one remedy, damages, which was not always an adequate solution to every problem

Consequently, many people were unable to seek redress for wrongs through the common law courts. Many of these dissatisfied parties petitioned the king, who was thought of as the ‘fountain of justice’. These petitions were commonly passed to the Chancellor, the king’s chief minister, as the king did not want to spend time considering them. The Chancellor was usually a member of the clergy, and was thought of as ‘keeper of the king’s conscience’.

Soon litigants began to petition the Chancellor himself, and by 1474, the Chancellor had begun to make decisions on the cases on his own authority, rather than as a substitute for the king. This was the beginning of the Court of Chancery.

The Court of Chancery could provide whatever remedy best suited the case – the decree of specific performance, for example, would have meant that the seller of land referred to above could be forced to honour the promise. This type of justice came to be known as equity

Principles of equity

• justice could appear arbitrary, and nobody could predict what a decision might be because its depends more on persona; opinion of fairness rather than from a laws in common law

• this very flexibility was seen as the great advantage of equity – where any rules are laid down, there will always be situations in which those rules produce injustice

The Judicature Acts led to a merger of both common law and equity in the 19th century. This conflict between common law courts and Chancery courts boosted this move because the judgments given in the two courts would at times conflict. In addition, the law of equity in itself was not a fully established system of law because it only acted as a remedy when the common law failed to address certain legal issues. The merger incorporated the principles of both common law and equity in order to avail a more wholesome system of judgment.

Consequently the Judicature Acts of 1873–1875, which established the basis of the court structure we have today, provided that equity and common law could both be administered by all courts, and that there would no longer be different procedures for seeking equitable and common law remedies. Although the Court of Chancery remained as a division of the High Court, like all other courts it can now apply both common law and equity.