Common Law- Institutional

Edward 1st
Developed writs and court would give remedy, what if you
didnt obtain writ- Petition the king to grant justice.
King delegate function of hearing petitions to Lord
Chancellor
Edward 2
Lord Chancellor began to formalize the way her heard
pleas. (legal Historians)
Richard 2- court of chancery coming into its own as
distinct court
Historical practiceLord Chancellor developing role of
chancery, which common law cannot grant.
Body of knowledge influenced by Christian church
(ecclesiastical law). Rather than in the body of common
law ..also Islamic law.

Historical Development of the Equity

Equity: Rules developed to mitigate the constraints of the
common Law
Unified Common Law system, Justices
Complaints: Slow, expensive, technical, Juries used in both
criminal & civil cases, system of writ had become rigid
(permission granted by king to bring grievance to have
case decided.)

People would petition the king when couldnt get justice in

Common Law or ordinary system, they would petiotion the
king and appeal to king conscience.
King would pass petition to the Chancellor( bishop,
clergic)
Overtime the COURT OF CHANCERY was developed.
Chancellor dealt with petions on the basis of what was
morally right in the circumstance not by precedent.
( drawing on legal principle/equitable maxims, but not the
strict common law approach). FLEXIBLE!
1474- Establish separate from the kings court
New procedure, New rights, new remedies.
New rightsTrusts- individual could hold legal title on behalf of
another person. (c.l.- trustee as owner)
- Idea of Conscience- BOUND TO KEEP Promise ( moral
& theological) Historical
Ex: someone has legal title for a period of time (control of
land), Looking after land on behalf of family.. Bound in
Conscience looking after land not to claim as his own.
Relationship of trust develop- Modern principle of Equity!

Lloyds bank v Rosset (1990)- 2

people who were married moved
into a derelict farm house( Going
to renovate). Husband inherited
some money & title to property
(mortgage was put into husbands
name)- legal owner of property.
Wife did quite number
renovations, while husband paid off mortgage.
Relationship btw property owner & someone who does
work on property? Do they have a share in property
relating to value of work?
Rosset ultimately got no share.
If property owning spouse makes a promise to nonproperty owning spouse then on the basis of
representation the non- property owning spouse can
claim a share of property relating to agreement.
Equity of redemption- allow mortgager to keep property if
he repay loan with interest. (c.l.- would lose property &
held liable to repay loan
Wouldnt be able to get remedy in CL courts
Plaintiff is without blame Come to the court with
clean hands/ without delay. (blameless)
New Remedies
CL Courts- Compensation $$$$
But what if its not what you want???- Remedy of specific
Performance, Injunction, Rectification, precision!

Specific Performance
Owner selling house, offer to buy it,
Seller Agrees= Contract
Completion of sales= owner changes
mind, and doesnt want to sell it.
CL- Entitled to compensationBut
you dont want money u want DREAM
HOUSE.
Equity- In Fairness, he must do what is agreed (order for
specific performance) Person who owns house will be
compelled to sell it.

Injunction

and

Next door neighbor keeps pigs in back

garden (hong, stort, smell) CL. CourtCompensationbut you want neighbor to
get rid of pigs! Might be able to get
injunction to stop neighbor from keeping
pigs (equity)Something more flexible
valuable than in the common law court.

19th Century Court of Chancery began to develop same

problems of common law: Equity decisions arbitrary, cases
expensive and lengthy.
Bleak House by Charles Dickens John Dice V John DiceCase goes on for so many years endlessly being debated
that by the time decision is given by judge in Chancery
court, there is nothing left to dispense under will, because
it was all spent on lawyers fee.
1873-1875 Judicature Act

Courts combined. (Chancery & common Law)

Importance of Equity in Modern day society

Equity has grown in importance with the development of
property law, especially with the holders of property
rights. Traditionally, women never held property, but were
property themselves. So, equity ensured that womens
rights are protected. Now, it is possible for women to own
properties, but socially, it is definitely more acceptable for
the male counterpart to own properties, and pay
mortgages, as being the main financial contributor in the
family. So, in the case of marital breakups, there is
equitable protection available to the person in the weaker
position. The common Law was neglecting womens
property rights, now, the House of Lords allowed for trusts
to be created, and if substantial contributions were made
to the home Ex: mortgage payments and home
improvements. Now there are many statutory protections
for women, but there are new problems that equity is
dealing with such as same sex couples and unmarried
couples. In this was equity provides Justice and flexibility
and filling the voids of common law.

Doctrine of Precedent
Stare Decisis- Stand what has been decided
-Doctrine that Obligate courts to look to precedent
when decided. ( Rule of Precedent)

Decision of higher court is binding on all lower

courts in the hierarchy

Precedent- culture of argument that make

reference to principles and rules
Like cases should be decided alike. Courts look to
past similar issues to guide in decision
Judge made law (Facts similar)- creates certainty in
the law
Donohue v. Stevenson- house of lords
decision
Principle underlining cases?? NEIGHBOR PRINCIPLE
DEVELOPED
Lord Atkin- love your neighbor- must not injure
your neighbor- person closely and directly affected
by my act that I ought reasonable to have them in
contemplation
Recognition- too rigid application of precedent
doesnt allow law to meet changing circumstance
therefore law cannot develop (need some sort of
flexibility).. Precedent must then be overturned!
Ratio Decidendi- Reason for the decision (binding)
legal reason behind case judgement
Material facts- vital for reason for decision!

Obiter dicta- things made by the way

R. v Howe ( 1987)
Do Judges make Law?
OF COURSELondon Tramways- Lord Holsburry- finis Lithiumrigid authority or the structure of precedent breaks
down.
1966 Practice Statement- balance 2 conflicting
ideas (authority & flexible/responsive)
Recognize that Too rigid adherence may lead to
injustice & restrict proper development of law In
certain cases HOL will depart from previous
decisions when it is right to do so.
* Provide some certainty! (Rules might change)
-Justice might never be served, the world changes.
(Justice must be responsive)
- ex: a man couldnt be held guilty of raping wife.principle was changed. (tension for change)

When is it right to do so? on narrowly drawn set

of fact or errorPreserving authority of the system
providing an endpoint. finis Lithium

- Miliangos v George Frank-( sterling principle to

the award of damages) but,Commercial reality
change. HOL overrule itselfLord Wilberforce-just because a rule is long
establish doesnt mean only legislation should
change itIf the law was judge made, the judges
should be able to change it.
Judges may still leave it to parliament Ex: political
principle, policy issues, or issues that court cant
do. But if they feel they have the competence to do
so, they will do that.
McLaughlin V. OBrien (1983)
Lord Scarman- 2 law making institutions, by
concentrating on principle the judges can keep
common law alive,flexible, consistent and clear of
policy problems. If results of principle are socially
unacceptable, parliament can create a new path.
Rearrangement of the balance of power- in
dialogue with parliament
Parliament- supreme law making power ex.
MIliangos v George frank.
Rv Shivpuri _ HOL overruled previous decision.

COA depart from HOL? Schorsh Meier V Henning

COA depart from COA? Davis v Johnson

- Woman with violent partner & wanted man out,
but could only do that is departed from
previous decision. HOL reaffirmed it cannot do
this. Demands of justice justify departing from
previous decision. Still can follow 1966 practice
statement.
- Lord denning is unsuccessfull
- Exceptions: Young v Bristol Aeroplane Co.