Q5

Prior to Norman Conquest in 1066, there was no unified system of law common to England as a
whole. Instead, customary laws applied which varied from an area of the country in accordance
with local customs. For example, Dane law was particularly influential in the North of England
where else in the south and west of the country, Wessex law was a more dominant force. There
was no central government and the king had little legal control over the country as a whole.

It was then the Norman Conquest represented a landmark in the eventual emergence of the
English Common Law. William I initiated the process of standardising the laws applicable
throughout the country. Representatives of the king which known as ‘itinerant justices’ were
dispatched throughout the country to scrutinise the local administration and adjudicate upon
disputes in accordance with the customary laws applicable in each region. Over a period of
time, the justices would select the best local customs then which to develop uniform rules to be
applied across the whole country. This process continued about 2 centuries, and hence an
English Common Law is emerged. The principle of stare decisis, on which judicial precedent is
founded has been established, and common law of exchequer, common pleas and King’s Bench
has been established.

Litigants soon came to experience difficulties in using common law due to both rigidity in the
system by which actions could be lodged and also the limited range of remedies granted by the
common law’s court. Civil actions had to be commenced by a writ which set out the cause of
action. Initially, when an action could not be fit within the existing writs, new writs could be
used. However, by the 13th century, the grounds on which writs would be based had become
fixed. Furthermore, the only damages granted by common law courts is only monetary
compensation (damages). Yet, this was not adequate for example in the sale of land, it was
often regarded that monetary damages provide no substitute for a specific parcel of land.

As a result of these shortcomings in the common law, aggrieved individuals began to petition to
the king for a fair outcome to their case in those situations where the common law had proven
inadequate to give them just satisfaction. The king in practice will pass the petitions over to his
Chancellor for adjudication which known as the “the keeper of King’s conscience”. He will then
attempt to resolve such case in accordance with what he perceived as principles of fairness, or
equity. This led to the origins of Court of Chancery. 5

It is noted that common law is based on certainty due to its rigidity and limited remedies.
However, on the other hand, equity is based on flexibility as the Chancellor enjoyed the power
to question the parties to a case themselves and there is not only a remedy available under
equity. The Chancellor can grant whatever remedies he thinks best suited for the case arose.

However, despite the flexibility equity may provide, there are series of equitable maxims which
are of great importance in cases where equitable remedies are sought for. An important maxim
is “he comes to equity must with clean hands”, essentially preventing those who have acted
inequitably from reaping the benefits of the vulnerable. In case of D&C builders v Rees, no
equitable remedy was available to the defendant as he has taken unfair advantage of the
builders’ financial situation. Another important maxim is “he who seeks equity must do equity”.
This was apparent in case of chappell v Times & Newspaper, where the strikes who sought for
an injunction to prevent their dismissal could not equitably continue to strike if the injunction
were to be granted. Another maxim is that “delays defeat equity”- the five years to eventually
bring a case would be held too long in Leaf v international Gallery.

Furthermore, it can be seen that equity had made a lot of contributions to the law by creating
many rights and remedies. One of the rights created is law of trusts. Law of trusts protected the
rights of women who could not own property before 1800 by recognising the rights of
beneficiaries. While women can own property today, the law of trust still plays an important
roles in many areas for example trusts are used in setting up pension funds and settling
property on younger members of the family. Besides, equity also creates the rights of
mortgagor to redeem his property, from the mortgagee upon payment of the principal sum and
interest outstanding. Under modern situations, a lot of people actually buy their property using
the aid of mortgage. All these can be seen as a contribution to the law.

Apart from the rights, there are also other remedies created as well for example injunction.
Injunction is an order of the court compelling the defendant to do (mandatory injunction) or
not to do something (prohibitory injunction). They are often used in cases of domestic violence
as a protection for the abused partner or is used to prevent nuisance. Equity also came out with
the Doctrine of Promissory estoppel which originated from Lord Denning’s obiter statement in
Central London Property v High Trees House. This doctrine is no doubt a powerful shield to
prevent hardship caused by the common law such as pinnel case, foakes & beer and so on.
Most of the cases are in debtor and creditor relationship. There are also other remedies such as
specific performance, rescission, rectification, mareva injunction and anton pillar order.

For a consideration period of time, equity and common law operated as two separate systems,
administered by two different courts, and there was tension between two bodies and rules.
However, this tension was finally resolved in the case of Earl of Oxfords which stated that
whenever there was a conflict between equity and common law, equity will prevail. This case
established the supremacy of equity over common law. The administration of the two systems
was finally brought together by the judicature Acts 1873-5 which merged the common law and
equity courts and finally gave all courts the power to administer both common law and
equitable remedies.

As a conclusion, the equity today continues to work in the same way it did, the recognition of
rights and remedies is that beyond those judges who administered equity. Modern equity has
been a system of principle and precedent rather than system of adhoc justice once
administered by Lord Chancellor. It had come into existence to fill in the gaps of the common
law.