English law is the system of law that has developed in England from approximately 1066 to the

present. The body of English law includes legislation, Common Law, and a host of other legal norms

established by Parliament, the Crown, and the judiciary 1. Before the Norman Conquest in 1066,

there were separate systems of law operating in different parts of England. Customs were largely

used before there was a standardised system of law. Customs are rules of behaviour which develop

in a community without being deliberately invented 2. They can broadly be divided into general

customs and local customs. General customs are effectively the foundation of the common law.

Post Norman Conquest, judges who were appointed by the King that travelled around the land

making decisions in the King’s name based at least some of their decisions on the general customs.

Today, general customs are not considered as an essential source of law as most general customs

have already been absorbed into legislation or case law long ago. Local customs on the other hand

only operate in a particular area when a person declares that he/she is qualified to some local right.

Ultimately, customs will only be part of the law if it is recognised by the courts and is enforceable at

law.

Clearly, the legal system in England and Wales could not rely merely on customs. Hence, the birth

of common law. After the Norman Conquest, a more organised system of courts emerged. When

William the Conqueror, the first Norman king gained the English throne in 1066, he established a

strong central government and began to standardise the law. The Norman kings became conscious

of the fact that it would be easier to control the country if the legal system was controlled. The idea

was to have a unitary body of law across England. William the Conqueror went on and set up the

Curia Regis which is a Latin term that means the King’s Courts and appointed his own judges to

settle disputes between the nobles who applied to decide the matter in the King’s name.

Other than the central court, the royal judges travelled around the land to major towns to decide on

key cases. Later, Henry II (1154-1189) divided the country up into ‘circuits’ or areas for the judges to
1
'English Law' (TheFreeDictionary.com, 2017) <http://legal-dictionary.thefreedictionary.com/English+Law> accessed 31 August
2017.
2
Jacqueline Martin, The English Legal System, 6th edition, London, Hodder Education, 2010, p. 15.
visit. This system was known as the ‘Itinerant justices’ whereby Royal justices would go on their

rounds to decide cases. The main reason for this system being introduced was because the journey

to the royal courts in Westminster took too long and there was always delay in hearing cases as

local witnesses could not be found. Due to these hassle, people did not go to the royal courts.

However, the local courts did not receive good acceptance and use because they were infamous for

corrupt, biased and unfair decisions, which is why the system of ‘Itinerant justices’ was introduced.

Initially, the judges would use customs and old Anglo-Saxon laws to decide cases when resolving

local disputes. However, over a period of time, it is believed on their return to the Capital, the judges

would discuss the cases they have resolved and the laws and customs they had used in deciding

the cases. Their decisions were written down, and gradually, the judges chose the best customs

which were to be used by judges throughout the country. This law was applied throughout the

country and common to all parts of England, hence the name, Common law.

There are two common law procedures. First is the precedent procedure. Over time, a rule of

precedent was established whereby a judge has to follow the decision of earlier judges when the

facts of the case are similar. The second common law procedure is the writ system whereby an

action in a royal court can only begin when the plaintiff has a writ. A writ is a document that lays

down the details of a claim issued by Lord Chancellor in the King’s name ordering the Defendant to

appear in court and show reason why the plaintiff should not be granted the relief he claimed. Writs

were issued to create new rights not recognised by the local courts and this helped to attract

business.

After 1285, Common Law evolved steadily along conservative lines. As the government became

more powerful, the royal courts increased in significance and prestige, and over time took away all
business from the barons’ feudal or seigniorial courts 3. Consisting initially of Criminal Law and the

Law of Property, Common Law grew during the Middle Ages to include the Law of Contract and Law

of Torts.

Equity is an essential source of law and still plays a role till today with many legal concepts having

developed from equitable remedies. The word ‘equity’ has a meaning of ‘fairness’, and this is the

basis on which it operates, when adding to our law. Equity refers to the specific set of legal

principles which came into existence to complement and fill gaps in the common law.

There are a few limitations and defects in the common law which led to the growth of equity. First,

the common law was inflexible as actions had to be begun by writ but there were only a limited

range of writs. So, if there was no writ for a particular issue, one will not be able to sue and there

won’t be a remedy. However, where there is no writ, the court would not create one. Furthermore, if

the wrong writ was obtained, the injured party cannot get his case heard. Second, under the

common law, cases were often lost owing to procedural defects and technicalities. Third, the only

remedy at common law was damages which is monetary compensation which were often

inadequate as this method would not be able to put matter right between parties in all cases. Fourth,

the common law was rigid as a result of binding precedent. The tools now available to avoid the

effects of precedent such as distinguishing and overruling were not available then. Fifth, the

common law was expensive. Sixth, there was a lot of bribery and corruption at Common Law.

People of wealth, power and status would put pressure on the courts to decide in their favour, which

would cause a person of low social status to lose the case.

Dissatisfied parties petitioned the King, who later passed these petitions to the Lord Chancellor,

“Keeper of the King’s Conscience” who was both a priest and a lawyer, as the number of petitions

rose, the King through the Chancellor established the Court of Chancery to deal with these

petitions. The Chancellor supervised the Chancery where clerks issued writs, commissions and
3
Maizatul Azila Binti Chee Din, Hasbollah Bin Mat Saad and Mohd Azizie Bin Abdul Aziz, Legal Study: Texts And Materials, 2nd
Edition, Melaka, Pena Hijrah Resources, 2011, p. 118.
other legal documents. The Chancellor dealt these petitions on the foundation of natural justice,

fairness and made decisions on what seemed morally right rather than on the strict following of prior

decisions. The Chancellor was ready to look beyond legal documents, which was considered legally

binding in the common law courts and also looked at the intentions of the parties. In order for the

decisions made to be fair, the Chancellor used new procedures like subpoenas, where a witness or

defendant was compelled to attend court whom he could examine on oath or risk imprisonment for

refusing to follow the Chancellor’s order. The quality of decisions varied at first from Chancellor to

Chancellor as fairness was a subjective quality. “Equity varies with the length of the Lord

Chancellor’s foot”. Equity was heard in English rather than Latin, not bound by technicalities and

was not restricted by the Writ System. The Chancellor did not use juries and concerned himself with

the questions of fact. The Court of Chancery over time became extremely famous. Vice-Chancellors

were appointed to deal with litigation, and a permanent Chancery Court was established in London,

which dealt with appeals from the Common Law and certain matters at first instance such as trusts.

The restrictions imposed on the expansion of Common Law by the Provisions of Oxford 1258 and

the Statute of Westminster II 1285 caused Equity to increase in significance and during the later

Middle Ages, it grew into a secondary system of law, supplementing and sometimes competing with

Common Law. In 1474, the Chancellor issued the first decree in his own name, which began the

independence of the Court of Chancery from the King’s Council.

Equity created new rights. While the Common Law only recognises legal ownership, the law of trust

recognises dual ownership. The legal and equitable ownership in the same property may vest in

different people in different ways at the same time. Hence, equity recognised the rights of

beneficiary under the law of trusts. Trusts are used in setting up pension funds and settling property

on younger members of the family. Also, the Common Law only recognised the legal owner of

property whereas equity recognised the rights of the mortgagor to redeem his property. The equity

of redemption allows the mortgagor to redeem his property from the mortgagee upon payment of
the principal and interest outstanding. The majority of homeowners buy their property with the aid of

a mortgage thus highlighting the importance of a mortgage.

Equity also created remedies apart from damages. Four new remedies were introduced. First,

specific performance. This is an order of the court compelling a party to perform his part of an

agreement that he had promised to fulfil. Second, rectification, which alters the words of a document

that does not express the true intentions of the parties. Third, rescission which refers to an order

that restores the parties to a contract to the position that they were in before the contract was

entered into. Fourth, injunction which is a judicial order that restrains a person from beginning or

continuing an action threatening or invading the legal right of another, or that compels a person to

carry out a certain act.

In the Earl of Oxford’s Case (1616) 1 Rep Ch 1 4, the King, James I held that where the common law

and equity conflict, equity was to prevail. The same rule was later included in S 25 of the Judicature

Act 1873. However, the King’s ruling was never completely accepted by the Common Law courts as

equity did not have fixed rules. This led to criticism about the outcome of cases. In order to achieve

uniformity, Lord Nottingham, the Lord Chancellor from 1673 to 1682 started to introduce a more

systematic approach to cases. This work was carried on by his successors, notably Lord Hardwicke

L.C (1736-56) and by the 19 th century, equity too became ruled by precedent and standard

principles.

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

authority to grant damages in addition to, or in substitution for, an injunction or a decree of specific

performance. These move was made to assimilate the remedies granted by the Court of Chancery

and the Common Law courts.

4
Earl of Oxford’s Case (1616) 1 Rep Ch 1
The Judicature Acts 1873 –1875 fused the administration of the Common Law courts and the Court

of Chancery and created a unified system of courts and procedures to form the Supreme Court of

Judicature. There were no longer different courts and procedures for those seeking equitable

remedies and common law remedies.

Equity also created maxims that were designed to ensure that decisions were morally fair. These

maxims had to be satisfied before equitable rules could be applied. Some examples of these

maxims are, first, He who comes to equity must come with clean hands. Lord Denning refused to

apply the doctrine of equitable estoppel in D&C Builders Ltd v Rees (1965) 5 on the grounds that the

Rees had taken unfair advantage of the builders’ financial difficulties and therefore had not come

‘with clean hands’. Second, equity looks to the intent rather than the form. Courts of Equity make a

distinction in all cases between that which is matter of substance and that which is matter of form

and if it finds that by insisting on the form, the substance will be defeated, it holds it inequitable to

allow a person to insist on such form, and thereby defeat the substance. Third, delay defeats equity.

Delay may be evidence of acquiescence, so the two issues cannot be separated. A failure to bring

an action may tend to confirm other slight evidence that the innocent party has accepted or agreed

to the breach of contract or other ground for seeking relief, thus preventing him from enforcing his

right to remedies for that breach. In Leaf v International Galleries (1950) 6 a plaintiff was sold a

painting which both parties mistakenly believed was by Constable. The court did not award the

equitable remedy of rescission, since there had been a delay for five years between the contract

and the discovery that the painting was not by Constable. Fourth, equity will not suffer a wrong to be

without a remedy. This maxim indicates that equity will not allow the technical defects of the

common law to prevent worthy plaintiffs from obtaining redress. Fifth, equality is equity. In the

absence of any evidence to the contrary, equity will tend towards the adoption of equal division of

any fund to which several persons are entitled.

5
D&C Builders Ltd v Rees (1965)
6
Leaf v International Galleries (1950)
Even in the twentieth century, the courts have used their equitable jurisdiction to develop new

remedies. First is the freezing order which was previously known as Mareva Injunction (1975). The

freezing order is a court order for third party to freeze the assets of a party before there is a risk of

that party moving all their assets out of the court’s jurisdiction before the case against them is tried.

Second is the search order which was known as the Anton Piller Order previously. This order

provides that the court can order for a search in the defendant’s premises to remove any documents

or other materials which would help the claimant prove his case.
References

'English Law' (TheFreeDictionary.com, 2017) <http://legal-

dictionary.thefreedictionary.com/English+Law> accessed 31 August 2017.

Jacqueline Martin, The English Legal System, 6th edition, London, Hodder Education, 2010, p. 15.

Maizatul Azila Binti Chee Din, Hasbollah Bin Mat Saad and Mohd Azizie Bin Abdul Aziz, Legal

Study: Texts And Materials, 2nd Edition, Melaka, Pena Hijrah Resources, 2011, p. 118.

Earl of Oxford’s Case (1616) 1 Rep Ch 1

D&C Builders Ltd v Rees (1965)

Leaf v International Galleries (1950)