Q How did equity came into being?
Q what is meant by the term “equity”? explain the historical developments of the law of equity?2016 Q1.
EQUITY :
The term equity means morality, natural justice, honesty, uprightness and the application of the principles of natural justice. This means that equity is a set of fixed rules which is not dependable on the sweet will of judges, these are well formulated set of rules.
Following are the definition given by eminent jurists:
Maitland defines equity as, that body of rules administered by our English courts which were not for the operation of the judicature acts, would be administered by those courts which would be known as courts of equity
Blackstone defines as the soul and spirit of all law, positive law is construed and natural law is made by it since the difference between equity and common law is more in form rather than in substance. The difference is more historical than in actual content
Hence, Equity means the body of rules formulated and administered by the court of chancery to supplement the rules of procedure of the common law.
In legal fiction equity becomes instrumental for the adoption of law for social needs. by equity is meant any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supercede the civil law, in virtue of a superior santicity inherent in those principles.
The claim of equity to authority is not based on the prerogative of any external person or body but on the special nature of its principles, to which it is alleged that all law ought to confirm. Legislation differs from equity in this, that it derives its authority from an external body or person. Its obligatory force is independent of its principles. Legislation as an agent of legal improvement, comes after equity.
HISTORY AND DEVELOPMENT OF EQUITY:
Before 1066 all laws were local and enforced in the manorial, shire and hundred courts. Under the Normans, Royal Courts began to emerge from the King’s Council. since the local courts lost jurisdiction over cases and thus lost income, A practice was started of sending judges around the country to hold assizes to hear cases locally. This enabled the judges, over a period of roughly 200 years, to take the best local laws and apply them throughout the land, thus creating law which was `common to the whole country ie, common law.
Originally the King’s Council carried out the three functions of state, namely legislative, executive and judicial. It dealt with all cases in which the King had a direct interest, like breaches of the peace. Eventually the courts split off from the Council and formed the main common law courts. The court of king’s bench, The court common pleas and The exchequer:
Common law procedures
Precedent:
The common law developed in these royal courts. As the work of common courts increased, the judges started using previous decisions by judges in similar situations. This led to the development of the doctrine of precedent.
The writ system:
With time judges developed the writ system. A writ was a document setting out the details of a claim. Over a period of time the writ system became extremely formal and beset with technicalities and claims would only be allowed if they could fit into an existing writ. This makes it rigid and not liable in every case.
Equity origin:
Disappointed litigants began to petition the King as the “Fountain of Justice”, the procedure being to present a petition. For a time the King in Council determined these petitions himself, but as the work increased he passed them to the Chancellor as the “Keeper of the King’s Conscience”. The Chancellor was usually a clergyman who dealt with these petitions on the basis of what was morally right. In 1474 the Chancellor began the independence of the Court of Chancery from the King’s Council. The Court of Chancery was in effect developed as a court of conscience to counteract the defects that existed in the common law system. The rules of equity varied from Chancellor to Chancellor until the end of the 16th century[3]. Equity created new rights by recognising trusts and giving beneficiaries rights against trustees. New remedies were developing in courts of equity including; specific performance, injuction retification, etc.
As equity developed it began to conflict with common law. Litigants used equity to their advantage often seeking an equitable injunction prohibiting the enforcement of a common law order
in the Earl of Oxford’s Case (1615)[5] the Court of Chancery issued a common injunction and It was decided that in cases of conflict between common law and equity, equity was to prevail. From that time on the common law and equity worked together, side by side.
From 1529 onwards records of proceedings in Courts of Chancery were kept which led to the development of equitable doctrines making equity as well a rigid. By the beginning of the 19th century the Court of Chancery had become a court of equity.
COMMON LAW PROCEDURE ACT 1858 : Delays were being caused by an inadequate number of judges and the officials. Thus in order to overcome under the Common Law Procedure Act 1854 the common law courts were given some power to award equitable remedies and the Chancery Amendment Act 1858 gave the Chancellor the power to grant damages in addition to, or in substitution for, an injunction or a decree of specific performance.
Judicature act 1873:
The primacy of equity was later enshrined in the Judicature Act 1873 s25 which also joined the courts of equity and the courts of common law into one under the title of the Supreme Court. The central feature of these reforms was that every court would now possess the power and have the duty to decide cases in line with common law and equity
Mareva Injunctions: Mareva v International Bulkcarriers [1975]
In 1975 the Court of Appeal recognised the Mareva injunction for the first time. This is a court order freezing the assets of a party to an action or stopping that party moving the assets out of the country.
Anton Piller Orders: Anton Piller v Manufacturing Processes Ltd [1976]
In 1974 the High Court started to grant what later became known as Anton Piller orders. This is an order to a defendant to allow the plaintiff on to the defendant’s premises to inspect, copy or remove documents or other objects relating to the plaintiff’s property. The aim is to stop the defendant removing or destroying vital evidence
Supreme court act 1981:
it comprises all, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales however, for some purposes the Crown Court is hierarchically subordinate to the High Court and its Divisional Courts. it also decided that equity should prevail if the two areas of law are in conflict with each other,
Conclusion:
Despite the arguments against equity to judges and plaintiffs, the inclusion of equity is a good thing as it gives them a greater likelihood of achieving their desired outcome.
