Equity fulfils the common law, although it does not endeavour to displace it with a moral code. In order to be influential, the law is to be professed as both certain and predictable, and also flexible and fair. Specifically, it needs clear rules on the one hand, but flexibility on the other to produce exceptions to cases that lead to apparently incongruous or unjust conclusions if the rules are applied rigidly. Equity is an essence of principles, doctrines, and rules advanced initially by the Court of Chancery in positive competition with the rules, doctrines and principles of the Common Law Courts.
The obliteration of the old Court of Chancery and the Common Law Courts, has led to the proposition that the distinction between law and equity is now outdated; that the two approaches are now ‘fused.’ On the contrary, the better analysis, is that the common law and equity remain distinct but mutually dependent features of law: ‘they are working in different ways towards the same ends, and it is therefore as wrong to assert the independence of one from the other as it is to assert that there is no difference between them.’
For a long time, the two structures of common law and equity ran uncomfortably side by side. Until 1615 it was by no means established which one was to prevail in the event of a dispute. Yet, even after that year the inconsistency between the two systems continued for a very long time. After the restructuring of the English court system in 1865, it was decided that in the event of a conflict between the common law and equitable principles, equity must prevail. The Judicature Acts 1873-1975 created one system of courts by amalgamating the common law courts and the courts of equity to form the Supreme Court of Judicature which would administer common law and equity. Accordingly the court ‘is now not a Court of Law or a Court of Equity, it is a Court of Complete Jurisdiction.’
The area of law recognized as Equity developed in England and Wales in the Middle Ages in situations where the ordinary common law had failed to afford suitable redress. Many legal actions, for example, originated by the issue of a writ but the slightest inaccuracy on the writ would invalidate the entire action. Another inadequacy in the ordinary common law involved the fact that the only remedy was damages; that is, compensation, therefore, the court orders did not exist to require people to do something or to desist from some conduct, for example, sell as piece of land according to an agreement made or stop using a particular title.
Dissatisfied litigants frequently preferred to petition the King for him to mediate in a specific case, the courts were, in any case, the King’s courts. These petitions’ for justice were dealt with by the King’s Chancellor who determined each case according to his own discretion. Over the years, the decisions made by Lord Chancellor became known as the rules of equity, derived from the Latin meaning levelling. These new-found rules came to be applied in a special court, the Chancellor’s Court, which became identified as the Court of Chancery. Equity began to appear as an apparent set of principles, rather than a personal jurisdiction of the Chancellor, during the Chancellorship of Lord Nottingham in 1673. By the end of Lord Eldon’s Chancellorship in 1827 equity was recognized as a precise jurisdiction. Nevertheless the development of a parallel but distinct system of dispute resolution was certainly bound to generate a conflict.
An individual wronged by a failure of the common law to remedy a gross injustice would apply to the court of equity. The Chancellor, if the case accepted it, would approve of a remedy preventing the common law court from imposing its order. The...