Equitable Remedies

Worksheet 1 & 2

The supreme court of judicature act, and the fusion of law & equity

Required reading:
Richard Clements and Ademola Abass, Equity and Trust: Text, Cases and
Materials, 4 ed. (Oxford University Press, 2013), pp. 11 – 22D
Glister & Lee. Hanbury and Martin on Modern Equity, 20th ed. (Sweet & Maxwell,
2015), pp. 15 – 25D

Key cases
• Earl of Oxford’s case (1615) 1 Rep Ch 1
• Gee v Pritchard (1818) 2 Swans 402
• Walsh v Lonsdale (1882) 21 Ch D 9
• Tinsley v Milligan [1993] 3 All ER 65

Equity: An introduction
 equity is the body of rules that grew up alongside the common law, eventually
becoming the Court of Chancery

 it is said to “...fill the gaps in the common law ...” and to mitigate the “... rigor
[of the doctrine of stare decisis] ...” of the common law

 is based on ‘conscience’: Earl of Oxford’s case (1615)

 equity has in effect ‘stepped in’

• when the common law has not provided a remedy; or
• where the common law rules have been or are being used to justify conduct
from with the legal title to property to engage in conduct that is
unconscionable

DRE pg. 1
Work point:
• consider what remedies you would want in the following situations, and then
decide whether these are available at law:

o trespassers are camping on your land

o you are purchasing a house, and after exchange of contract, your seller
refuses to complete
o the land registry has failed to register your valid legal easement
o you have bought a car that has significant faults
your trustees have used money to buy a holiday home for themselves
o your trustees have used trust money to buy shares that have generated
significant dividends
o you have invented an energy-saving device, but a rival company is using
your designs to create a similar device

The definition of equity:

 equity may be described as a body of legal principles based on justice and
fairness

 it is often referred to as the conscience of the law, and is viewed as mitigating

the harshness and rigidity of the common law

 it is discretionary in nature, but particularly in its modern context, it operates

within clearly defined parameters of substantive and procedural rules

 its contribution both to the development of the substantive law – for example
trusts and mortgages, and to the provision of remedies – for example specific
performance, injunctions etc.); where common law remedies are either non-
existent or inadequate, is always anchored on over-riding considerations of
justice and fair-play

 equity can be described, but not defined (Meagher, Heydon and Leeming
(2002), p. 3)

DRE pg. 2
  it is the body of law developed by the Court of Chancery of England before
1873

 Maitland (1947) describes it as “ ... the body of rules which is administered

only by those courts which are known as Courts of Equity ...”

 however this definition would be inaccurate in contemporary times, because

there are no courts which can be called courts of equity (Clements and
Abass, (2013), p. 2

The relationship between equity and the common law:

 the common law grew out of the customs and practices of the English, and
the rules arising from the ancient common law courts

 however, when speaking of common law as a legal tradition, this does not
only refer to the body of law defined by common law courts

 this would include the rules of equity and equitable principles

 equity, which is inspired by ideas of fairness, justice and conscience is today

a branch of law standing apart from the common law

 equity is therefore a separate and distinct body of English law which grew up
alongside, but not together with the common law (Belle Antoine (1996), p.
166)

 it is therefore most apposite to view the common law system as one which
has a dual structure

o this duality is unique and embodies both the substance and the application
of the law (Belle Antoine (1996), pp. 166 – 176)

DRE pg. 3
The contribution of equity to modern law:
 threefold
o maxims
o remedies
o interests and rights
- equitable rights over land
- equitable rights under a trust

The history of equity:

 the common law grew out of the customs and practices of the English, and
the rules arising from the ancient common law courts

 following the Norman Conquest, law was first administered by the King’s
Council – the Curia Regis

 later, a system of courts was developed with specific jurisdiction

 Henry II played a major role in developing the legal system and created a
professional judiciary, administering courts that dispensed justice on ‘circuits’
travelling around the country, and in a settled bench at Westminster

 but common law was formal, slow-moving and highly technical

 several problems could be identified with the common law

o rigidity of the writ system

- an action at common law had to be commenced by writ (now
replaced by the mechanisms under the Civil Procedure Rules)

- each action had its own specific type of writ

- the Provisions of Oxford 1258 : Parliament in 1258 issued

provisions stating that no new writs would be approved without the
permission of the king in Council : this effectively meant that if a

DRE pg. 4
 new cause of action arose, then no claim could be made in the
common law courts as it would have required a new type of writ

 several problems could be identified with the common law

o complexity of procedures
- most cases before the common law courts dealt with land, where
parties and witnesses were often not present in person

- the procedures involved were not suited to deal with personal

attendance

- limited remedies

- remedies at common law were generally limited to damages and

money

 out of the significant defects of the common law, arose the system of equity
to inject fairness and justice into the legal system

 this was propelled mainly by disgruntled litigants petitioning the king for fairer
answer as the “... fountain of all justice...”

 however, increased petitions to the king led to the delegation of the

responsibility to the Lord Chancellor – who was a Catholic cleric, and
considered the “... keeper of the king’s conscience ...”

 this subsequently led to the creation of a separate, independent court in 1474

– the Court of Chancery, staffed by clerks of the Chancellor

 this court was not bound by a writ system – based on decisions of fact, not
law – and cases were heard in English, not Latin

 new procedures introduced included

o an order for the disclosure of documents
o a subpoena to compel attendance in court for examination

DRE pg. 5
  because the Chancery over-ruled decisions of the common law courts,
conflict developed between the two systems

 that decisions were based on discretion was a source of contempt in the

common law courts – hence the criticism by John Selden (1689) that “ .. if the
measure of equity was the Chancellor’s own conscience, one might as well
make the standard measure of one foot, the Chancellor’s foot ...”

 problems with equity included

• uncertainty
o “... equity varies with the length of the Chancellor’s foot...” (John
Selden, Table Talk (1689) – just as their feet size differed, so may
have been their respective conscience

o as equity is based is bases on ‘conscience’, each new Lord

Chancellor that was appointed may have had a different conscience
from those that preceded him

o hence, a decision on exactly the same facts by a former Chancellor

will not be necessarily be followed by the new Lord Chancellor

 the conflict between law and equity came to a head in the Earl of Oxford’s
case in 1616

Key case: The Earl of Oxford’s Case

• a defendant appealed against a judgement in the common law courts on the
ground that the judgement had been obtained through fraud

• the Lord Chancellor – Lord Ellesmere, agreed and issued a ‘common

injunction’ restraining the claimant from enforcing the judgement

DRE pg. 6
 • these ‘common injunctions’ were seen as a direct challenge to the authority of
the common law courts as they effectively deprived the recipient of the ability to
pursue a remedy from the common law courts

• however, the Lord Chancellor argued that there was no conflict between the
two courts, as equity did not interfere with the operation of the common law

• instead, it acted in personam, meaning against the conscience of the recipient

• therefore, the common law decision was left undisturbed; equity only acted to
compel the recipient to act according to good conscience

• this dispute was finally resolved by King James I in 1616, when he declared in
favour of the Court of Chancery

• this gave birth to the equitable maxim that where the law and equity conflict,
equity prevails

History of equity:
 eventually equity became just as formalized as common law and subject to its
own technicalities, and was heavily criticized in the nineteenth century for
excessive delays

 several measures were implemented to address the problems which arose in

equity

o equitable principles, or the maxims of equity were established to give

certainty
o the doctrine of precedent also applied to previous decisions in equity (see
Gee v Pritchard (1818)

 a litigant who wanted a legal and equitable remedy would have to apply to
both the common law courts and the courts of equity, or alternatively might
have applied to the wrong court and had the case dismissed, so

DRE pg. 7
 o the Judicature Acts 1873 – 1875 fused the administrative systems of law
and equity together

o it did not fuse law and equity together: the two are still separate, but run
‘side by side’

o “... the two streams have met and still run in the same channel, but their
waters do not mix ...” (F.W. Maitland, Equity 2nd ed. (1936))

 the Judicature Acts 1873 – 1875 fused the administrative systems of law and
equity together

- it did not fuse law and equity together: the two are still separate,
but run ‘side by side’

- “... the two streams have met and still run in the same channel, but
their waters do not mix ...” (F.W. Maitland, Equity 2nd ed. (1936))

- this is the subject of a vigorous academic debate see Worksheet 2

o all the common law courts and the Court of Chancery could now apply all
remedies, both legal and equitable

 in the Judicature Acts of 1873 and 1875, the Court of Chancery became a
division of new High Court and equitable remedies could be awarded in any
court alongside the common law remedy of damages

 as a result of potential conflicts when administering both types of remedies, s.

25 of the Judicature Act, 1873 provided that in the event of a conflict of
principles, equitable principles should prevail
o this was a statutory codification of the decision in the Earl of Oxford’s case
(1615)

DRE pg. 8
  over time, equity has been responsible for creating a variety of interests and
remedies otherwise unavailable at common law, and is still capable of
expanding as seen in the case of with the emergence of the Anton Piller
order and the Mareva injunction

The Chancery jurisdiction after the Earl of Oxford’s Case but before the
Judicature Act, 1873-75
 before the Earl of Oxford’s case in the famous dictum of Selden (1927),
equity was

o ... a rougish thing. For [common law] we have a measure ... equity is
according to the conscience of him that is Chancellor, an as that is
longer or narrower so is equity. ‘Tis all one as if they should make the
standard measure of the Chancellor’s foot ...

 however, after the Earl of Oxford’s case, but before the Judicature Acts,
equitable rues were thought to become more systematized, rigid, and in fact,
cases of equity begun to be reported

 in Gee v Pritchard (1818) Lord Eldon strongly rebuffed thoughts that

equitable rules have remained loose, whimsical and as varied as the
Chancellor’s foot

o [n]othing 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

 in Re Telescriptor Syndicate Ltd. (1903), Buckley J declared that “ ... this

court is not a court of conscience ...” and in Re National Funds Assurance
Co (1878), Jessel MR also stated that the Chancery Division if the High
Court (one of the new divisions that the Judicature Acts divided the new High
Court into) “... is not, as I have often said, a court of conscience, but a court
of law ...”

DRE pg. 9
  the maturation of the rules of equity, from a bundle of inconsistent, flexible
and unregulated rule, into a full systematic body of rules was recognized by
the House of Lords in Co7operative Insurance Society Ltd. v Argyll Stores
(Holdings) Ltd. (1997):

o ... of course the grant or refusal of specific performance remains a

matter for the judge’s discretion. There are no binding rules, but this
does not mean that there cannot be settled principles, founded on
practical considerations ... which do not have to be re-examined in
every case, but which the courts will apply in all but exceptional
circumstances ...

 but it should not be assumed that the victory for equity led to a clear-cut
relationship between it and the common law – far from it, equity had become
a victim of its own success

• on the one hand, the rules of equity became systematized

• on the other hand, equity’s relationship with the common law became
less clear

 there was an endless chain of actions and reactions as regards cases

between these courts

 the nature of this relationship was brilliantly captured by Charles Dickens’

Bleak House (1850) at page 115

o ... [e]quity sends questions to [l]aw, [l]aw sends questions back to

[e]quity; [l]aw finds it can’t do this, [e]quity finds it can’t don’t that; neither
can so much as say it can’t do anything, without this solicitor instructing
and this counsel appearing ...

The reform of the court of equity:

DRE pg. 10
  due to the challenges which evolved, steps were taken by the 18th century to
reform the Chancery

see Gary Watt, Trusts and Equity 2 ed. (Oxford: Oxford University Press,
2006),7

 the Court of Chancery Act 1850 and the Court of Chancery Procedure Act
1852 were early attempts to wrestle with the procedural problems in the
Court of Chancery

 however, the major step towards expediting the procedure of Chancery did
not come until Lord Chancellor Selborne introduced the Judicature Act 1873
into Parliament

o ironically, it was due to administrative delays that the statute did not
come into force until 1875, when it was re-enacted with amendments

o we now refer collectively to the statute as the Judicature Acts 1873 –

1875

o by the enactments, the Supreme Court of Judicature was established to

administer the rules of equity and law within a uniform procedural code
see Worksheet 2

Topic 2

The Supreme Court of Judicature Act, 1873 and the Fusion of Law & Equity:

Key cases:
 Walsh v Lonsdale (1882) 21 Ch D 9
 MCC Proceeds Inc v Lehman Bros International (Europe) [1998] 4 All ER
675 (CA)
 Errington v Errington and Woods [1952] 1 KB 290
 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904

DRE pg. 11
  Western Fish Products Ltd. v Penwith District Council [1981] 2 All ER 204
 Cowcher v Cowcher (1972) 1 WLR 425
 Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002]
EWCA Civ 1407(2003) QB 679
 Aquaculture Corporation v New Zealand Green Mussel Co Ltd. [1990] 3
NZLR 299 (CA)

Equity after the Judicature Acts 1873 – 1875 : An introduction

 by s. 3 of the Supreme Court of Judicature Act, 1873

o The several courts hereinafter mentioned (that is to say) the High Court of
Chancery in England, the Court of the Queen’s Bench, the Court of Common
Pleas at Westminster, the Court of Exchequer, the Court of Admiralty, the
Court of Probate, the Court for Divorce and Matrimonial Causes shall be
united and consolidated together and shall be construed under and subject to
the provisions of this Act into one Supreme Court of Judicature in England.

 One of the main issues arising out of the passage of the Judicature Acts
was:

o whether the fusion of equity and law was relegated to administrative

amalgamation; that is the fusion of merger of the court system inter alia the
courts of the Chancery and Admiralty and Queen’s Bench Division into one
Supreme Court of Judicature, culminating in the court’s exercise of
concurrent jurisdiction;

OR:

o whether it extended to a fusion of the two systems or branches of law and

equity into one system of law

 Lord Selbourne LC in his contribution to the parliamentary debate on the

Supreme Court of Judicature Act in its Bill form, noted that it was merely

DRE pg. 12
 procedural in motivation and that the Bill was not one of fusion of law and
equity

 Salt v Cooper [1880] 16 Ch D 544 at 549 : Sir George Jessel MR observed

in reference to the Supreme Court of Judicature Act 1873, “It is stated very
plainly that the main object of the Act was to assimilate the transaction of
Equity business and common law by different Courts of Judicature . It has
sometimes inaccurately called “the fusion of Law and Equity”, but it was not
any fusion or anything of the kind it was the vesting of one tribunal the
administration of Law and Equity in every cause, action or dispute which
should come before that Tribunal. That is the meaning of the Act”.

 Ashburner, Principles of Equity (1902), 23: Lord Ashburner in obvious

agreement with Jessel MR, penned his famous fluvial metaphor: the two
streams though they run in the same channel, run side by side and do not
mingle their waters.

BUT see:
○ Errington v Errington [1952] KB 290 at 298 where Lord Denning stated
that law and equity have been fused for nearly 80 years now

○ United Scientific Holdings Ltd v Burnley Borough Council [1977] 2 All

ER 62 at 68, where Lord Diplock remarked that the waters of the confluent
streams of law and equity have surely mingled now.

reform of the common law and equity

 after the Earl of Oxford’s case, and the subsequent Chancery Act and
Chancery Amendment (Lord Cairn’s) Act, the primacy of equity became
confirmed, and the number of petitions to the Court of Chancery continued to
grow.

 delays and corruption increased however, and as a result, 3 additional

judges – or Vice Chancellors, were appointed in 1813 and 1843

DRE pg. 13
Informatic: The Chancery Amendment Act, 1858
 The Chancery Amendment Act 1858 (21 & 22 Vict. c. 27) also known as Lord
Cairns' Act after Sir Hugh Cairns, was an Act of the Parliament of the United
Kingdom that allowed the English Court of Chancery, the Irish Chancery and
the Chancery Court of the County Palatine of Lancaster to award damages,
in addition to their previous function of awarding injunctions and specific
performance

 The Act also made several procedural changes to the Chancery courts, most
notably allowing them to call a jury, and allowed the Lord Chancellor to
amend the practice regulations of the courts

 By allowing the Chancery courts to award damages it narrowed the gap

between the common law and equity courts and accelerated the passing of
the Judicature Acts 1873 Q 1875, and for that reason has been described as
"prophetic”

 After the English Court of Chancery was dissolved by the Supreme Court of
Judicature Act 1873 – 1875 the Act lost relevance, and in England and
Wales it was gradually repealed by a succession of acts up to the 1880s

 However, the existing legal system underwent major reform in the nineteenth
century through 2 Acts – commonly referred to as the Supreme Court of
Judicature Acts 1873 – 75

o the present dual system comprising of courts of common law and

equity was merged into a single Supreme Court, comprising the High
Court and the Court of Appeal.

o The jurisdiction of the judges in the new Supreme Court was ‘fused’
so that all judges could use the whole range of common law and
equitable rules

DRE pg. 14
  This meant that litigants no longer faced the delay and expense of pursuing
2 separate actions at common law and equity

o section 25 of the Supreme Court of Judicature Acts 1873 – 75 gave

statutory authority to the principle that where common law and equity
conflicted, equity prevailed
the fusion of the administration of law & equity
 the reorganization of the courts carried out by the Judicature Acts 1873 – 75
produced 1 Supreme Court administering both law and equity

 though by sake of convenience the High Court dealing with cases at first
instance was divided into divisions. every judge of each division was by s. 24
of the 1873 Act given the power and duty to recognize and effect to both
legal and equitable rights, claims, defences and remedies

 before the Judicature Acts there were cases where common law and equity
had different rules, which might give rise to inconsistent remedies

 in such cases the equitable rule would prevail by means of the grant of a
common injunction

 s. 24 (5) however abolished the common injunction, no doubt to accord with

s. 25 (11) which abolishes the legal rule in a matter in favor of the equitable
one

see
Berry v Berry [1929] 2KB 316

Walsh v Lonsdale (1882) 21 Ch D 9, CA

 There are cases however where the rules of common law and equity do not
result in conflict and to which ss. 24 and 25 have no application

DRE pg. 15
 o the award of damages for breach of voluntary contract made by
deed or breach of a contract for personal service

 there are cases however where the rules of common law and equity do not
result in conflict and to which ss. 24 and 25 have no application

o cases where equity and law would give different but compatible
remedies

• for instance, in the case of nuisance, common law would give

damages for the injury suffered by the plaintiff, while equity would grant
an injunction restraining further commission of the tort

o in relation to the conversion

See: Pettit. Equity and the Law of Trusts 9 ed. (2001), pp. 7 – 8

Was equity therefore supreme?

o in all matters not hereinbefore mentioned, in which 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 prevail (s. 25 of the Supreme Court of
Judicature Act, 1873)

o there is only one court and equity rules prevail in it see

• Walsh v Lonsdale (1882) 21 Ch. D. 14 but see
• Joseph v Lyons [1894] QBD 280

the "fusion debate”

 the reforms introduced by the Judicature Acts 1873 – 1875 marked the birth
of a modern legal system in England and Wales

 the Judicature Acts 1873 – 1875 established a Supreme Court in

replacement of the previously existing Courts of Chancery, King’s Bench,
Common Pleas, Exchequer, Admiralty, Probate and the London Court of
Bankruptcy

DRE pg. 16
  the Judicature Acts divided the Supreme Court into the High Court and the
Court of Appeal

○ the High Court, which is to sit as the court of first instance, was
divided into the Chancery Division, King’s Bench Division, Common
Pleas Division, Exchequer Division and the Probate, Divorce and
Admiralty Division

○ each of these divisions is headed by a judge, who by virtue of s. 24

of the 1873 Act must recognise and give effect to both legal and
equitable rights, claims, defences and remedies

 however, since 1875, the exact effect of the Judicature Acts as been very
controversial

○The single most important question about the Acts that continues to
divide writers and judges is – what did the Judicature Acts do?

• did they fuse the rules of equity and common law so that they now
become one?

OR

•Did they simply amalgamate the rules of equity and common law so
that the rules still retain their individual identity, but are administered by
a single court?

 opinions are sharply divided on the matter

o some writers and judges believe that rules of equity and common law
are now fused and it is no longer sensible to talk about 2 distinct rules
of equity and common law

DRE pg. 17
 o the effect of the Judicature Acts is purely procedural so that only the
administrations, and not the rules are fused

• this view is partly based on the provisions of s. 49 of the Supreme

Court Act 1981 (U.K) (this replaced s. 24 of the 1873 Act)

McDonald Street (2013) for example posit that while it is clear that the Judicature
Acts fused the administration of common law and equity, there is continuing debate
as to whether the Acts in fact created a unified system of rules

The Three Positions

There are THREE main positions regarding the fusion debate:

1. that the Judicature Acts only unified the administration of law

○ this position argues that the Judicature Acts only created a unified court
system

○ Ashburner in Principles of Equity, 2nd edn. (1933) eloquently expressed the

viewpoint when he likened the common law and equity to two streams
running alongside each other, but never mingling their waters

○ this view is also held by eminent English legal historian J H Baker, as well
as Gary Watt and Australian Chief Justice, Sir Anthony Mason (writing
extrajudicially)

See: Clements and Abass, Equity and Trusts: Text, Cases and Materials, 3
ed. (2011), pp. 12 – 13

○In Salt v Cooper (1880) Jessel MR at page 549 pronounced that

the main object of the Act was to assimilate the transaction of equity business
and common law business by different Courts of Judicature. It is sometimes
inaccurately called the ‘fusion of law and equity; but it was not any fusion, or
anything of the kind; it was the vesting in one tribunal of the administration of

DRE pg. 18
 law and equity in every cause, action or dispute which should come to that
tribunal

○ in MCC Proceeds v Lehman Bros International (Europe) (1988)

Mummery LJ at 691 stated that the Judicature Acts were intended to achieve
procedural improvements in the administration of law and equity in all courts,
not transform the equitable interests into legal titles or to sweep away
altogether the rules of the common law, such as the rule that a plaintiff in an
action for conversion must have possession or a right to immediate
possession of the good.
2. The Judicature Acts effected a more substantive fusion of equity and the
common law

o on the other side of the divide are those who believe that the Judicature
Acts did not merely fuse the administration of equity and the common law, but
the Acts also fused the substantive rules of those jurisdictions

o not only have judges supported this view in judicial prouncements, they
have written in favour of it

o in Walsh v Lonsdale (1882) Jessel MR arugued that “ ... there are not two
estates as there were formerly, one established at common law ... and an
estate in equity ... there is only one Court and the equity rule prevails in it”

see
• Brian Fitzgerald. "Walsh v Lonsdale: Eighties Style." (1990) 6 QUT Law
Review 119T125

• David O’Keefe. “Sir George Jessel and the Union of Judicature”(1982) 26(3)
The American Journal of Legal History, 227 – 251

o in Errington v Errington and Woods (1952), Lord Denning stated that “... law
and equity have been fused for nearly eighty years now ... ”

DRE pg. 19
 o in Boyer v Warbey (1953), Lord Denning would further clarify what he
actually meant by ‘fuse’ when, while pronouncing on the common law
principle of privity of estate and equitable leases

o more explicitly in United Scientific Holdings Ltd. v Burnley Borough Council

(1978), Lord Diplock argued that Asburner’s fluvial metaphor of the two
parallel streams had become “... mischievous and deceptive ...” and that the
streams of common law and equity had long since mingled together

o more recent judicial opinions have tended to favour the ‘fusion of rules’
approach

see
• Tinsley v Milligan [1993] 3 All ER, 65 per Lord Browne-Wilkinson
• Coulthard v Disco Max Club [2000] 1 W.L.R. 707
•Seager v Copydex Ltd. [1967] 1 WLR 923 o Attorney General v Blake [2001]
1 AC 268

3. the third position accepts that while equity and the common law have become
closer, there is a pressing need to complete the unification of the two systems

o Sarah Worthington in her book, Equity, 2nd edn. (2006) argues that as
equity and common law continue to develop, they continue to encroach on
each other’s usual territory

o this creates the risk that comparable cases will not be treated alike and that
the ability of judges to make clear and principled decisions will be clouded

o Worthington convincingly argues that equity and the common law have
always borrowed from each other, and neither systems occupies a distinctive
conceptual position

• a good example of this is the parallel development of undue influence

in equity and economic duress in the common law – both of which look

DRE pg. 20
 at questions of knowledge and unconscionability, but approach similar
factual situations through increasingly difficult factual distinctions
Corporation v New Zealand Green Mussel Co Ltd. [1 NZLR 299 (CA)
The Commonwealth’s approach to the Judicature Acts

 the judicial approach in most commonwealth jurisdictions concerning the

effect of the judicature acts has leaned heavily towards asserting that the
Judicature Acts fused common law and equity rules and not just their
administration

o it must be noted that although persuasive in effect, decisions from

commonwealth jurisdictions DO NOT prevail over decisions of English courts

• Aquaculture Corporation v New Zealand Green Mussel Co Ltd. [1990] 3

NZLR 299 (CA)
• Mouat v Clarke Boyce [1992] 3 NZLR 299
• Le Mesurier v Andrus (1986) 54 OR (2d) 1
• Canson Enterprises Ltd. v Broughton & Co (1991) 85 DLR (4th) 129

The Modern relevance of equity – equity after the Judicature Acts: has it gone
past its childbearing age

 despite the perspective with respect to the effects of the Judicature Acts on
the relationship between common law and equity, there is a general
consensus that the rules of equity became more formal and rigid after the
Acts

 this new perception of equity has led to concern about whether in modern
society, equity is still capable of inventing new principles – after all equity
derives its pedigree from its ability to respond, and provide alternatives, to
the rigidness of the common law

DRE pg. 21
  questions have arisen as to whether equity has “...passed the age of
childbearing ...”

see:
•Re Diplock [1948] 2 All ER 204 at 218
•Western Fish Products Ltd. v Penwith District Council [1981] 2 All ER 204 at
218
•Cowcher v Cowcher (1972) 1 WLR 425 at 948
•Allen v Snyder [1977] 2 NSWLR 685 at 689

Tutorial Questions (week 4)

“The innate conservatism of English lawyers may have made them slow to
recognise that by the Judicature Act 1873 the two systems of substantive and
adjectival law formerly administered by courts of law and courts of equity ... were
fused. As at the confluence of the Rhône and the Saône, it may be possible for a
short distance to discern the source from which each part of the combined stream
came, but there comes a point at which this ceases to be possible. If Professor’s
Asburner’s fluvial metaphor is to be retained at all, the confluent streams of law and
equity have surely mingled now.” (Lord Diplock in United Scientific Holdings Ltd v
Burnley Borough Council [1978] AC 904).
(a) Outline the key issues and findings of United Scientific Holdings Ltd v Burnley
Borough Council; (4 marks)

“The innate conservatism of English lawyers may have made them slow to
recognise that by the Judicature Act 1873 the two systems of substantive and
adjectival law formerly administered by courts of law and courts of equity ... were
fused. As at the confluence of the Rhône and the Saône, it may be possible for a
short distance to discern the source from which each part of the combined stream
came, but there comes a point at which this ceases to be possible. If Professor’s
Asburner’s fluvial metaphor is to be retained at all, the confluent streams of law and
equity have surely mingled now.” (Lord Diplock in United Scientific Holdings Ltd v
Burnley Borough Council [1978] AC 904).
(b) Explain Lord Diplock’s fluvial metaphor in the passage above; (5 marks)

DRE pg. 22
“The innate conservatism of English lawyers may have made them slow to
recognise that by the Judicature Act 1873 the two systems of substantive and
adjectival law formerly administered by courts of law and courts of equity ... were
fused. As at the confluence of the Rhône and the Saône, it may be possible for a
short distance to discern the source from which each part of the combined stream
came, but there comes a point at which this ceases to be possible. If Professor’s
Asburner’s fluvial metaphor is to be retained at all, the confluent streams of law and
equity have surely mingled now.” (Lord Diplock in United Scientific Holdings Ltd v
Burnley Borough Council [1978] AC 904).
(b) With reference to relevant authorities, critically discuss the quote from Lord
Diplock’s speech in United Scientific Holdings Ltd v Burnley Borough Council. (16
marks)
Total: 25 marks

Past Examination Question (May 2015)

For over one hundred years the reasoning of Jessel M.R. in Walsh v Lonsdale
(1882) has caused judges and academic writers a multitude of problems. Recently,
further discussion of the infamous ‘lease case’ has attempted to finally resolve the
disputes. Peter Sparkes (1988) – one of the new brigade, provides a new insight by
suggesting that the notion of ‘rent in advance’ was not incompatible with a yearly
tenancy in the preIJudicature Acts age. He reasons from this stand point that Walsh
v Lonsdale could have been decided in accordance with the procedural fusion
theory. Mindful of the true basis of the decision i.e. equity's supremacy, Sparkes
continues on and attempts to rationalise the reasoning of Jessel M.R. He concludes
that due to the premises that rent is recoverable at law only, and that distress is a
legal remedy conditional upon a legal right, the decision in Walsh v Lonsdale can
only be supported if one admits that the Judicature Acts effected the fusion of the
substantive principles of law and equity
[However], to some, the judgment of Jessel M.R. in Walsh v Lonsdale represents
the epitome of fusion fallacy. For others, the reasoning of Jessel M.R. does not
contradict Ashburner's fluvial metaphor, inter alia that the result of the fusion of law
and equity by the Judicature Acts is that “ ... the two streams of jurisdiction, though
they run in the same channel, run side by side and do not mingle their waters ...”
(Brian Fitzgerald : 1990, p. 1 – 2)

DRE pg. 23
(a) Outline the facts and findings of Walsh v Lonsdale (1882) 21 Ch D 9; (3
marks)
(b) What are the objectives of the Judicature Acts described in the excerpt
above? (2 marks)
(c) Briefly outline what is meant by the “fusion fallacy”, (3 marks)
(d) With reference to STATED examples and authorities, critically analyze the
various aspects of the so-called “fusion debate”. (18 marks)
Total: 25 marks

RicRichard Clements and Ademola Abass, Equity and Trust : Text, Cases and
Materials, 4 ed. (Oxford University Press, 2013), pp. 11 – 22D
hard Clements and Ademola Abass, Equity and Trust : Text, Cases and Materials, 4
ed. (Oxford University Press, 2013), pp. 11 – 22D

DRE pg. 24