THE ICFAI UNIVERSITY

TRUST EQUITY AND FIDUCIARY RELATION ASSIGNMENT

TOPIC: HISTORY OF COURT OF EQUITY AND RELATION OF LAW OF

EQUITY AND EQUITABLE RELIEF

SUBMITTED TO: SUBMITTED BY:

MS. PRIYA CHANANA PRIYA BHATNAGAR

ASST. PROFESSOR BALLB HONS

ILS 3RD YEAR

17FLICDDNO2093

SECTION B
ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not forget
to thank them.

I respect and thank my teacher, for providing me an opportunity to do the project and giving us
all support and guidance which made me complete the project duly. I am extremely thankful to
her for providing such a nice support and guidance.

I am thankful and fortunate enough to get constant encouragement, support and guidance which
helped in completing the project work.

Thank you

Priya Bhatnagar
INTRODUCTION
A court of equity, equity court or chancery court is a court that is authorized to apply
principles of equity, as opposed to those of law, to cases brought before it.1

The early equity courts developed in England, and were called chancery courts, so named
because they were administered by the King’s Lord Chancellor.  Their authority derived from the
King’s authority.  They were the “keeper of the King’s conscience.”  Courts of law and courts of
chancery (equity) were separate courts, operating independently.  Where a court of law delivered
a result that was unfair or compounded an injustice, equity courts could and did act to mitigate or
alter altogether harsh outcomes.  For hundreds of years, the English equity courts wielded
considerable power, and were largely unrestrained by black letter law or precedent.

Interestingly, there also existed in England a criminal court of equity, more commonly known as
the Star Chamber.  Like chancery courts, the Star Chamber’s power also derived from the King.
The Star Chamber was originally established to bring to justice powerful persons whose
positions might otherwise allow them to escape punishment in courts of law.  This court had no
formal indictments, and required a defendant to testify as to the charges against him.  Its
deliberations were secret. Over time, the Star Chamber’s power was abused, and it became
vilified as an institution which trampled basic protections and individual rights that we take for
granted today.  Indeed, our own Constitution was in part adopted as a reaction against these
abuses, and led to the adoption of the privilege against self-incrimination contained in the 5th
Amendment.  Generally speaking, today there isn’t a criminal court of equity in the United
States, although there are certain equitable powers, such as pardons for convicts or sentence
commutations, which can be exercised through the executive power of the President or a
governor.

Conversely, equitable powers in the realm of civil litigation are alive and well, albeit much
changed from their chancery predecessors.  Today, most American courts are combined courts of
equity and courts of law.  They are no longer separate courts.  Additionally, modern equity
courts do operate under some substantive and procedural constraints.  They are not unbound
from law and precedent as were earlier chancery courts.  When exercised today, equitable
powers generally take the form of non-monetary remedies, such as injunctions, writs and orders
for specific performance, and are invoked where a monetary outcome alone would be considered
inadequate.  Equitable decisions are informed by the Twelve Maxims of Equity, which include
“equity delights in equality” and “equity will not suffer a wrong to be without a remedy.”  From
some of these principles we get many of our legal presumptions.  For instance, the strong
presumption in many states in divorce cases that an equitable division of marital property is an
equal division is but one of these.2

1
https://en.wikipedia.org/wiki/Court_of_equity

2
https://prestoservers.com/blog/courts-of-equity-a-brief-history/
In jurisdictions following the English common law system, equity is the body of law which was
developed in the English Court of Chancery and which is now administered concurrently with
the common law.3

For much of its history, the English common law was principally developed and administered in
the central royal courts: the Court of King's Bench, the Court of Common Pleas, and the
Exchequer. Equity was the name given to the law which was administered in the Court of
Chancery. The Judicature Reforms in the 1870s effected a procedural fusion of the two bodies of
law, ending their institutional separation. The reforms did not effect any substantive fusion,
however. Judicial or academic reasoning which assumes the contrary has been described as a
"fusion fallacy".[2]

Jurisdictions which have inherited the common law system differ in their current treatment of
equity. Over the course of the twentieth century some common law systems began to place less
emphasis on the historical or institutional origin of substantive legal rules. In England, Australia,
New Zealand, and Canada, equity remains a distinct body of law. Modern equity includes,
among other things.4 5

 The law relating to express, resulting, and constructive trusts;

 Fiduciary law;
 Equitable estoppel (including promissory and proprietary estoppel);
 Relief against penalties and relief against forfeiture;6
 The doctrines of contribution, subrogation and marshalling; and
 Equitable set-off.

The latter part of the twentieth century saw increased debate over the utility of treating equity as
a separate body of law. These debates were labelled the "fusion wars" 78 A particular flashpoint in
this debate centred on the concept of unjust enrichment and whether areas of law traditionally
regarded as equitable could be rationalised as part of a single body of law known as the law of
unjust enrichment.

3
'Common law' here is used in its narrow sense, referring to that body of law principally developed in the superior
courts of common law: King's Bench and Common Pleas.
4
Heydon, JD; Leeming, MJ; Turner, PG (2014). Meagher, Gummow & Lehane's Equity: Doctrine and Remedies.
Trusts, Wills and Probate Library (5th ed.). LexisNexis. ISBN 9780409332254.
5
McGhee, John, ed. (13 December 2017). Snell's Equity (33rd ed.). Sweet & Maxwell. ISBN 9780414051607.
6
There is currently a divergence of opinion between the High Court of Australia and the Supreme Court of England
on this point. In Australia, the continuing existence of the equitable jurisdiction to relieve against penalties has been
confirmed: Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30, 247 CLR 205. In
England, this view was not adopted: Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67.
7
Degeling, Simone; Edelman, James, eds. (October 2005). Equity in Commercial Law. Sydney: Lawbook Co.
ISBN 0-455-22208-8..
8
For an example of the pro-fusionist view, see Andrew Burrows, Burrows, Andrew (1 March 2002), "We Do This
At Common Law But That in Equity", Oxford Journal of Legal Studies, 22 (1): 1–16, doi:10.1093/ojls/22.1.1,
JSTOR 3600632.
BACKGROUND

Origins of the common law

After the Norman Conquest of England in the 11th century, royal justice came to be administered
in three central courts: the Court of King's Bench, the Court of Common Pleas, and the
Exchequer. The common law developed in these royal courts. To commence litigation in these
royal courts, it was necessary to fit one's claim within a form of action. The plaintiff would
purchase a writ in the Chancery, the head of which was the Lord Chancellor. If the law provided
no remedy (or no efficacious remedy), litigants could sometimes appeal directly to the King.
Eventually, the King would delegate resolution of these petitions to the King's Council. These
petitions were eventually delegated to the Lord Chancellor himself.

In the early history of the United States, common law was viewed as a birthright. Both the
individual states and the federal government supported common law after the American
Revolution. U.S. courts draw on decisions of English courts, individual state courts, and federal
courts in formulating common law.9

Emergence of the Court of Chancery

By the 14th century it appears that Chancery was operating as a court, affording remedies for
which the strict procedures of the common law worked injustice or provided no remedy to a
deserving plaintiff. Chancellors often had theological and clerical training and were well versed
in Roman law and canon law.10

By the 15th century the judicial power of Chancery was clearly recognised. Equity, as a body of
rules, varied from Chancellor to Chancellor, until the end of the 16th century. After the end of
the 17th century, only lawyers were appointed to the office of Chancellor. Over time, Equity
developed a system of precedent much like its common-law cousin.

One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a
role that the rigid framework of land law could not accommodate. This role gave rise to the basic
distinction between legal and equitable interests.

Development of equity in England

It was early provided that, in seeking to remove one who wrongfully entered another's land with
force and arms, a person could allege disseisin (dispossession) and demand (and pay for) a writ
of entry. That writ gave him the written right to re-enter his own land and established this right
under the protection of the Crown if need be, whence its value. In 1253, to prevent judges from
inventing new writs, Parliament provided in the Provisions of Oxford that the power to issue
writs would thereafter be transferred to judges only one writ at a time, in a "writ for right"
package known as a form of action. [citation needed] However, because it was limited to enumerated
9
"The Origins of Common Law". US Legal, Inc.
10
Worthington, Sarah (12 October 2006). Equity. Clarendon Law Series (2nd ed.). Oxford University Press.
pp. 10–11. ISBN 0199290504.
writs for enumerated rights and wrongs, the writ system sometimes produced unjust results.
Thus, even though the King's Bench might have jurisdiction over a case and might have the
power to issue the perfect writ, the plaintiff might still not have a case if there was not a single
form of action combining them. Therefore, lacking a legal remedy, the plaintiff's only option
would be petitioning the King.

People began petitioning the King for relief against unfair judgments of the common law courts.
As the number of petitioners rapidly grew, the King delegated the task of hearing petitions to the
Lord Chancellor, who was literally the Keeper of the King's Conscience. Since the early
Chancellors lacked formal legal training and showed little regard for precedent, their decisions
were often widely diverse. In 1529, a lawyer, Sir Thomas More, was appointed as Chancellor,
marking the beginning of a new era. After this time, all future Chancellors were lawyers.
Beginning around 1557, records of proceedings in the Courts of Chancery were kept and several
equitable doctrines developed. Chancery continued to be the subject of extensive criticism, the
most famous of which was 17th-century jurist John Selden's aphorism:

Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according
to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all
one as if they should make the standard for the measure we call a foot, a Chancellor's foot; what
an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third
an indifferent foot: 'tis the same thing in a Chancellor's conscience.11

A criticism of Chancery practice as it developed in the early medieval period was that it lacked
fixed rules and that the Lord Chancellor was exercising an unbounded discretion. The counter-
argument was that Equity mitigated the rigour of the common law by looking to substance rather
than to form.

Litigants would go 'jurisdiction shopping' and often would seek an equitable injunction
prohibiting the enforcement of a common law court order. The penalty for disobeying an
equitable ‘common injunction’ and enforcing a common law judgment was imprisonment.

The Chief Justice of the King's Bench, Sir Edward Coke, began the practice of issuing writs of
habeas corpus that required the release of people imprisoned for contempt of chancery orders.

This tension climaxed in the Earl of Oxford's case (1615) where a judgment of Chief Justice
Coke was allegedly obtained by fraud.[13] The Lord Chancellor, Lord Ellesmere, issued a
common injunction from the Chancery prohibiting the enforcement of the common law order.
The two courts became locked in a stalemate, and the matter was eventually referred to the
Attorney-General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld the use of
the common injunction and concluded that in the event of any conflict between the common law
and equity, equity would prevail. Equity's primacy in England was later enshrined in the
Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law
(although emphatically not the systems themselves) into one unified court system.

J. Selden, Table Talk; quoted in Evans, Michael; Jack, R Ian, eds. (1984), Sources of English Legal and
11

Constitutional History, Sydney: Butterworths, pp. 223–224, ISBN 0409493821

Ecclesiastical laws

Ecclesiastical laws are a branch of English law and were English laws that dealt with matters
concerning the church, this was so that religion and law was differentiated. These laws are
considered an unwritten law of England and cannot be withheld in the court of law.
Ecclesiastical laws are not currently established in the U.S as Common law.12

Statute of Uses 1535

In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of
trust called ‘the use’ that enabled one person (who was not required to pay tax) to hold the legal
title of the land for the use of another person. The effect of this trust was that the first person
owned the land under the common law, but the second person had a right to use the land under
the law of equity.

Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an attempt
to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner
of the land the legal owner and therefore liable for feudal dues.

The response of the lawyers to this Statute was to create the 'use upon a use'. The Statute
recognized only the first use, and so land owners were again able to separate the legal and
beneficial interests in their land.

For an example, see Godwyne v. Profyt (after 1393): a petition to the Chancellor.13

India

In India the common law doctrine of equity had traditionally been followed even after it became
independent in 1947. However, in 1963 the "Specific Relief Act" was passed by the Parliament
of India following the recommendation of the Law Commission of India and repealing the earlier
"Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and
made statutory rights, thereby ending the discretionary role of the courts to grant equitable
reliefs. The rights codified under the 1963 Act were as under:

 Recovery of possession of immovable property (ss. 5–8)

 Specific performance of contracts (ss. 9–25)
 Rectification of Instruments (s. 26)
 Recession of Contracts (ss. 27–30)
 Cancellation of Instruments (ss. 31–33)
 Declaratory Decrees (ss. 34–35)
 Injunctions (ss. 36–42)

12
"The Origins of Common Law". US Legal, Inc.
13
Earl of Oxford's Case, I Ch Rep I, 21 ER 485 (Court of Chancery 1615).
With this codification, the nature and tenure of the equitable reliefs available earlier have been
modified to make them statutory rights and are also required to be pleaded specifically to be
enforced. Further to the extent that these equitable reliefs have been codified into rights, they are
no longer discretionary upon the courts or as the English law has it, "Chancellor's foot" but
instead are enforceable rights subject to the conditions under the 1963 Act being satisfied.
Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India
continue to exercise their inherent powers in terms of Section 151 of the Code of Civil
Procedure, 1908, which applies to all civil courts in India.

There is no such inherent powers with the criminal courts in India except with the High Courts in
terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are
vested in the Supreme Court of India in terms of Article 142 of the Constitution of India which
confers wide powers on the Supreme Court to pass orders "as is necessary for doing complete
justice in any cause of matter pending before it".
HISTORY OF COURT OF EQUITY AND RELATION OF LAW OF
EQUITY

Equity came into existence during the 13thcentury.14 At that time the courts of law had froze the
types of claims they would hear as well as the procedure governing the hearing of those claims.
The range of claims that would be heard became narrow and the processes to bring the actions to
court became so technical with jurors often being bribed. As a result of these changes plaintiffs
with meritorious claims were often denied relief15

To attempt to counteract this discrepancy remedies could be obtained by petitioning the King,
who had residual judicial power to deal with such matters. The King began delegating the
function of dealing with such petitions to the Chancellor. The post of Chancellor at this time was
usually a clergyman and King’s confessor. The Chancery evolved into a judicial body known as
the Court of Chancery, until by the end of the 15 th century the judicial power of the Chancery
was fully recognised. 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 16thcentury16

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. If a common law judgment was enforced in disobedience of a common injunction then the
person enforcing the judgment could face imprisonment17

In the Earl of Oxford’s Case (1615) 18 the Court of Chancery issued a common injunction
prohibiting the enforcement of a common law order. The matter was referred to the Attorney
General Sir Francis Bacon when no resolution could be reached between the 2 courts. Sir Francis
upheld the common injunction and stated that

‘inthe event of any conflict between the common law and the law of equity, equity would
prevail’.

Lord Ellesmere pointed out in the above case why there was a need for a Chancery. He stated

‘Men’s actions are so diverse and infinite that it is impossible to make any general law which
may aptly meet with every particular and not fail in some circumstances. The office of the
Chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs and oppression
of what nature so ever they be, and to soften and mollify the extremity of law.’

By the 17th century only lawyers were appointed to the office of Chancellor. From 1529 onwards
when Sir Thomas Moore was appointed as Chancellor records of proceedings in Courts of

14
Pearce, R and Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed p4 – 7

15
T. Cockburn, T, Harris, W, & Shirley, M, Equity & Trusts, 2005,Butterworths
16
Cockburn, T & Shirley, M Equity in a Nutshell, 2005, Lawbook Co
17
Co-op Insurance v Argyll Stores [1997] 3 All ER 297
18
1 Rep Ch 1 at 6
Chancery were kept which led to the development of equitable doctrines. Prior to his
appointment no such records were kept and decisions made by the Chancellors were
discretionary and erratic.

By the beginning of the 19th century the Court of Chancery had become a court of equity. In the
case of Gee v Pritchard19 Lord Eldon made the comment that

The doctrines of the Court of Chancery ought to be well settled, and made as uniform, almost, as
those of the common law, laying down fixed principles, but taking care that they are to be
applied according to the circumstances of each case. I cannot agree that the doctrines of this
court are to be changed by every succeeding judge. Nothing would inflict on me greater pain in
quitting this place than the recollection that I had done anything to justify the reproach that the
equity of this court varies like the Chancellor’s foot.

The primacy of equity as stated by Sir Francis 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 Supreme Court was divided into 2 forming the High Court and the court
of Appeal. The High Court was further divided under 5 different headings giving rise to the
Chancery Division, King’s Bench Division, Common Pleas Division, Exchequer Division and
the Probate, Divorce and Admiralty Division.

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 20 Where there is a discrepancy
between the common law solution and an equitable one the precedent of the Earl of Oxford’s
case still applies meaning that equity will be paramount in the decision making process. The
Supreme Court Act 1981 s49 has embodied this principle and instructed that

(1) Every court exercising jurisdiction in England and Wales in any civil cause or mater shall
continue to administer law and equity on the basis that wherever there is any conflict or
variance between the rules of equity and the rules of common law with reference to the same
matter, the rules of equity shall prevail21

Before the common law courts and the Court of Chancery became one common law actions
could only be commenced by means of a writ whereas actions in the Court of Chancery were
commenced by an informal bill of complaint and the process begun by the use of a subpoena 22
Chancery hearings were informal and were not restricted to being able to sit at certain times as
was the case with the Common Law Courts. Hearings could even take place within the
Chancellor’s house.

It would appear that common law and equity were effectively fused together by the Judicature
Acts. Ashburner’s view of this was

19
(1818) 2 Swan 402 at 414
20
Judicature Act 1873 s24
21
Supreme Court Act 1981 s49(1)
22
Pearce, R and Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed p4 – 7
The two streams of jurisprudence though they run in the same channel, run side by side, and do
not mingle their waters23

Although equity and common law are fused together in that a court is entitled to award equitable
remedies or common law remedies or a combination of both within the same court 24 there are
still some areas of law where the distinction between legal ownership and equitable ownership
still thrive 25One such area is in the formation and management of trusts.

Before the introduction of equity into the legal system persons wishing to dispose of their
property by way of a trust where faced with the difficulty or passing ownership to their intended
beneficiaries without giving them the property outright26. Under the common law system the
transfer of the property into the hands of the trustees’ could only be read as giving full title to the
trustees and no account could be given for the concerns of the beneficiaries. The whole process
of the trust system is firmly rooted in equity with the trustees holding the land on trust for the
beneficiaries27.

In order that the trustees can invest or deal with any of the property the ownership of the property
transfers to them under common law rulings and equity creates a beneficial interest for the
beneficiaries to ensure that when the beneficiaries reach the age of maturity as dictated by the
trust document that the full title of the property becomes vested in them 28 The essential element
that the trustees have to be aware of is that despite the fact that they have the power to invest or
sell trust property that they are in fact acting on behalf of the beneficiaries 29 Trustees who make
unwise investments are breach the trust can and often are made to compensate the beneficiaries
for any losses incurred by their actions ]30. In these matters equity will usually favour the
beneficiaries.

Although there is an apparent fusion of common law and equity there is still a difference in the
way in which common law remedies and equitable ones are administered. Common law
remedies are available as of right31 whilst equitable remedies are discretionary and awarded at
the will of the court32 Equitable remedies can also be affected by the behaviour and position of
the party claiming the remedy. As the courts are allowed to take into account the conduct of the
party seeking the award they can decide not to award an equitable remedy where it considers
their conduct should deprive them of such an award.33

23
Ashburner, W, Principles of Equity, 2nd Ed, 1933, Butterworths
24
Supreme Court Act 1981 s49
25
Holdsworth, W, History of English Law, 7th Ed, 1956, Mathuen& Co Ltd
26
Walsingham’s Case (1579) 2 Plowd 547
27
Hopkins v Hopkins (1739) 1 Atk 581
28
Pearce, R and Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed p97
29
Tempest v Lord Camoys (1882) 21 Ch D 571
30
Re Beloved Wilkes’ Charity (1851) 3 Mac & G 440
31
Sinclair v Brougham [1914] AC 398
32
Co-op Insurance v Argyll Stores [1997] 3 All ER 297
33
D and C Builders v Rees (1965); Tinsley v Milligan [1993] 3 All ER 65
Problems arose in the case of Tinsley v Milligan 34where the question raise was whether the
plaintiff could assert a claim to an equitable interest in land by way of a resulting trust where she
had acted illegally. The maxim as set down by equity that a person seeking to assert an equitable
entitlement must come with clean hands prevented the plaintiff from asserting her right. Under
common law a plaintiff would be entitled to assert their common law right to ownership
provided that they did not need to rely on their illegal conduct to establish title. As the plaintiff in
this case did not need to rely on their illegal conduct to establish title her claim succeeded.

To assist the court in making equitable decisions certain maxis of equity have been established.
These are not binding rules and do not provide guidance in every situation. They are intended as
illustrations based on principles established in recurrent themes.

One of the maxims of equity is that it will not suffer a wrong without a remedy 35 This is of
particular importance in trust law, where without the influence of equity the beneficiaries may
lose the benefit assigned to them by way of the trust document 36. Another maxim was that equity
follows the law37, although as has been previously stated statute favours equity as prevailing
when the 2 are at a variance to each other.

Further maxims exist in the following circumstances. Where the equities of the parties are equal
one with a legal right and the other an equitable right the common law rules will prevail 38Where
both only possess equitable rights the first in time right to the item prevails39

It was also laid down that he who seeks equity must do equity. This means that the person
seeking the equitable relief must act fairly towards the person he is seeking the relief from 40. As
mentioned above anyone coming to equity must come with clean hands. Any illegality or
inequitable conduct could effect their entitlement to an equitable remedy41

Failing to act swiftly could also prevent a plaintiff from asserting his equitable rights 42. Where
the division of property is not clear equity would dictate that the property is divided in equal
shares43. When making equitable decisions the court will look to the intent of the parties and will
regard that as done that which ought to have been done 44. There is an imputed intention in equity
to fulfill obligations45. Decisions made on the basis of equity are in personam which enforces
decisions by means of a personal order against the defendant46

34
[1993] 3 All ER 65
35
Cooper v Joel (1859) 1 de G F & J 240; Torrance v Bolton (1872) 8 Ch App 118
36
Cannon v Hartley [1949] Ch 213
37
Burgess v Wheate (1759) 1 Eden 177
38
Wortley v Birkhead (1754) 2 VesSen 571
39
Willoughby v Willoughby (1756) 1 Term Rep 763: Brace v Duchess of Marlborough (1728) 2 P Wms 491:
Phillips v Phillips (1861) 4 De GF & J 208
40
Solle v Butcher [1950] 1 KB 671
41
Tinsley v Milligan [1993] 3 All ER 65
42
Smith v Clay (1767) 3 Bro CC 639
43
McPhail v Doulton [1971] AC 424
44
Parkin v Thorold (1852) 16 Beav 59; Walsh v Lonsdale (1882) 21 Ch D 9
45
Thynne v Glengall (1848) 2 HL Cas 131
46
Webb v Webb [1994] QB 696
The types of equitable remedies that can be awarded by the courts include injunctions, specific
performance, rectification and rescission. With an injunction the courts can either stop the party
from doing something or require them to do something 47 An order of specific performance
requires one of the parties to a contractual agreement to complete their part of the contract.
Usually awards of this kind relate to specific articles such as land and will not be awarded where
the court cannot supervise the operation of the order48. Rectification is concerned with the
alteration of contractual documents49. An order for rescission is issued with the intent of
returning the parties in a contractual agreement to the position they were in before having
entered into the agreement. This can be distinguished from the common law award of damages.
In an award for damages the intention of the court is to put the parties in the place they would
have been in had the contract been completed.

It can be seen from the above that equity was introduced to fill the void that was lacking in
common law. Under the old system of common law from the 13 th century until the courts
combined there was no leeway for the courts to order specific performance or injunctions 50 The
common law system functioned merely on the awarding of damages and so therefore if the
plaintiff wanted to order someone to do something or to stop doing something but could not
show that any specific monetary loss would result from the action of the defendant then the
common law courts did not have the power to deal with such issues51

Although equitable remedies are awarded without reliance on legislation for their enforcement
there are many ways in which the aims of equitable remedies mirror those of the common law.
Under common law the aim is to compensate the plaintiff for any financial loss tat they have
incurred as a result of a wrong being done to them. Under equity the courts are addressing the
situations where monetary compensation may not be appropriate. An injunction may prevent a
future monetary loss for the plaintiff. An example of this would be an injunction preventing
someone from building a factory on land adjacent to that of the plaintiff. If the factory is allowed
to be built the knock on effect could result in a depreciation of the value of the property of the
plaintiff52 Similarly an injunction against a trustee preventing him from dealing with the assets of
the trust in a certain way might prevent the beneficiaries from a financial loss on their
inheritance.53

It could be viewed in some circumstances that equitable remedies may prevent the need for a
future claim under common law. This would particularly be the case in the issuing of an
injunction as mentioned in the paragraph above. Similarly an order for specific performance
could prevent a claim in the future for breach of contract . 54 Frequently the plaintiff would prefer
that the contract was carried out as originally agreed rather than be awarded damages for the non
performance of the contract55. This could well be the case where the order of specific
47
Warner Bros v Nelson (1937)
48
Ryan v Mutual Tontine Westminster Chambers Association (1893)
49
Jocscelyne v Nissen (1970)
50
Ryan v Mutual Tontine Westminster Chambers Association (1893)
51
Pearce, R and Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed p4 – 5
52
Jackson v Normanby Brick Co [1899] 1 Ch 438
53
Re Beloved Wilkes’ Charity (1851) 3 Mac & G 440
54
Wilson v Northampton and Banbury Junction Railway Co (1874) 9 Ch App 279
55
Beswick v Beswick [1968] AC 58
performance centres around building work being undertaken on the plaintiff’s property.
Although damages would compensate the plaintiff for the work not being completed the plaintiff
would still need to employ someone else to complete the contract.

Although the principles of equitable remedies can be widely different to common law remedies
they are not totally incompatible with common law remedies. One of the common aims of both is
a restoration of natural justice either by way of monetary compensation, where no other method
would suffice, or by way of equitable remedies or occasionally by the use of both. The
conclusion can therefore be drawn that equity and common law remedies are working together to
establish natural justice for the plaintiff and that although they have different remedies for
achieving that aim the end result is that the plaintiff has a greater chance of getting the award
best suited to their situation.

On occasions it may seem that they are working against each other. This might particularly be
the case in trust law where the equitable interests of the beneficiaries supersede that of the
trustees. This is more the case in the instance of constructive trusts that have been created as the
result of mutual wills. In such cases as these the survivor of the deceased might only have a life
interest in their own property as they have agreed in the mutual will to hold the property on trust
for the beneficiaries56 However, if equity did not intervene in this area then the surviving testator
of a mutual will could alter their will upon the death of their partner and totally disinherit the
beneficiaries that the deceased testator specifically wanted to inherit57

Despite the arguments against equity and the problems caused by the insertion into the Supreme
Court Act 1981 that equity should prevail if the two areas of law are in conflict with each other,
it is very rare that the judges are placed in such a position, especially since they now have the
power to decide issues under either common law rules or equity. From the point of view of
plaintiffs the inclusion of equity is a good thing as it gives them a greater likelihood of achieving
their desired outcome.

56
Re Dale [1993] 4 All ER 129
57
Re Cleaver [1981] 2 All ER 1018
Bibliography

Ashburner, W, Principles of Equity, 2nd Ed, 1933, Butterworths

Civil Procedure, The White Book, Volumes 1 & 2, 2002, Sweet & Maxwell

Cockburn, T & Shirley, M Equity in a Nutshell, 2005, Lawbook Co

Cockburn, T, Harris, W, & Shirley, M, Equity & Trusts, 2005,Butterworths

Harris, P, An introduction to Law, 4th Ed, 1995, Butterworths

Hayton, D J, The Law of Trusts and Equitable Remedies, 11th Ed, 2001, Sweet & Maxwell

Holdsworth, W, History of English Law, 7th Ed, 1956, Mathuen& Co Ltd

Pearce, R and Stevens, J, The Law of Trusts and Equitable Obligations, 2nd Ed, 1998,

Slapper, G & Kelly, D, The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd

Thomas, M, Statutes on Property Law, 8th Ed, 2001, Blackstone’s

Zander, M, The Law-Making Process, 3rd Ed, 1988, Weidenfield& Nicolson

Table of Cases

Beswick v Beswick [1968] AC 58

Brace v Duchess of Marlborough (1728) 2 P Wms 49

Burgess v Wheate (1759) 1 Eden 177

Cannon v Hartley [1949] Ch 213

Co-op Insurance v Argyll Stores [1997] 3 All ER 297

Cooper v Joel (1859) 1 de G F & J 240

D and C Builders v Rees (1965)

Earl of Oxford’s Case (1615) 1 Rep Ch 1 at 6

Gee v Pritchard (1818) 2 Swan 402 at 414

Hopkins v Hopkins (1739) 1 Atk 581

Jackson v Normanby Brick Co [1899] 1 Ch 438

Jocscelyne v Nissen (1970)

McPhail v Doulton [1971] AC 424

Parkin v Thorold (1852) 16 Beav 59

Phillips v Phillips (1861) 4 De GF & J 208

Re Beloved Wilkes’ Charity (1851) 3 Mac & G 440

Re Cleaver [1981] 2 All ER 1018

Re Dale [1993] 4 All ER 129

Ryan v Mutual Tontine Westminster Chambers Association (1893)

Sinclair v Brougham [1914] AC 398

Smith v Clay (1767) 3 Bro CC 639

Solle v Butcher [1950] 1 KB 671

Tempest v Lord Camoys (1882) 21 Ch D 571

Thynne v Glengall (1848) 2 HL Cas 131

Tinsley v Milligan [1993] 3 All ER 65

Torrance v Bolton (1872) 8 Ch App 118

Walsh v Lonsdale (1882) 21 Ch D 9

Walsingham’s Case (1579) 2 Plowd 547

Warner Bros v Nelson (1937)

Webb v Webb [1994] QB 696

Willoughby v Willoughby (1756) 1 Term Rep 763

Wilson v Northampton and Banbury Junction Railway Co (1874) 9 Ch App 279

Wortley v Birkhead (1754) 2 VesSen 571

Table of Statues

Judicature Act 1873

Supreme Court Act 1981