ROLE OF EQUITY IN THE LAWS OF ENGLAND AND WALES
Introduction
Law and practice in England and Wales have been marked by the coexistence of common law and equity, in which each has a specific function, though they are interrelated and intended to seamlessly complement each other. Equity worked in tandem with common law, governed by Chancery courts and influenced by equitable maxims and concepts such as equity follows the law and he who seeks equity must do equity (Mousourakis and Mousourakis, 2019, p.263). If common law took an approach that was based on long-standing principles with precedent and tradition serving as the legal source, then the equity law supplemented it by dealing with cases where the strict reliance on precedent led to injustice. This means that Equity was developed to supplement the application of common law to ensure fair administration of justice. Equity which means fairness demonstrates the need for justice to be fair and therefore plays a vital role in the administration of justice in the English and Welsh legal systems (Mousourakis and Mousourakis, 2019, p.267). This essay critically examines the roles of equity as a legal concept within the England and Wales jurisdictions by considering its historical background, its association with the Common law, and the relevance of its usage in modern times.
The development and application of the common law in the UK can be traced back to the period after the normal conquest when the King initiated the process of consolidation of power and creation of new institutions for royal authority and administration of justice. The process of establishment of the new governing institutions responsible for the administration of justice led to the creation of the writ system in the 12th century which played an important role in the establishment of the common law system (O'Connell, 2016, p.56). In the writ system, parties who intended to initiate proceedings before the royal court were required to obtain a writ containing the specific cause of action and possible remedy for the said cause of action. The main roles of the court of common law were resolution of disputes and remedying the injured party for the wrong done to such parties using the writ system (O'Connell, 2016, p.57). Where the party was not able to find a specific writ providing for the cause of action and remedy, such party did not have any other avenue to present their claim.
This writ system was based on the only available old writ as issuance of the new writ was restricted and not recommended by the king’s council. Further, the enactment Provision of Oxford restricted the issuance of the writ by providing that no new writ would be issued without the authority of the King (Valente, 2017 p.37). This action resulted in a situation where several disputes were unsolved as the parties whose cause of action and remedies were not provided under the old writ had no avenue to present their issues or even obtain remedies for the wrong done to them. Therefore, the old or existing writ formed a law on the specific issues and remedies that they addressed. This led to the development of the system where laws were formulated from the tradition that is from the common people commonly referred to as common precedent. This cemented the rigidity of the common law as only what was provided under the existing writ or tradition provided for the cause of action and remedies for wrongful conduct (Valente, 2017 p.39). Therefore, the common law under the writ system was too rigid and strict such that this strictness was associated with the perpetuation of injustice due to its lack of adaptability and inability to solve issues equitably in certain cases.
The rigidity and strictness of common law meant that the court of common law could not award equitable remedies such as injunctive relief or specific performance where the damages were insufficient as a remedy for the wrong. The limitation of the court of common law to award equitable remedies and the rigidity of the common law specifically the rigidity of the writ system led to the need for the establishment of a platform that would be able to address the said limitations to ensure fairness and justice (Mousourakis, and Mousourakis, 2019, p.253). The platform established to resolve the limitations of the common law was the law of equity through the establishment of the court of chancery. Equity which is composed of several legal principles is a supplementary branch of law whose purpose is to make up for the shortcomings of common law under the principle of fairness, whereby it means giving all parties fair treatment regardless of the strict application of legal law when they would have been treated unjustly. It was born from the Chancellor's ability to act by the King's conscience to determine the remedies not provided for under the common law. The use of conscience by Chancellors was because they were the trusted advisers of the King and therefore presumed that they would use their powers of discretion of conscience to grant remedies that ensured there was fairness as the king would have done. Courts of equity or courts of chancery emerged to solve these deficiencies, exercising discretion to achieve fair outcomes based on principles of justice and conscience (Capern, 2019, p.711). This made the Chancery Court become the most important adjudicative structure delivering equity, distinct from the common law courts. The approach used by the court of chancery provided the chancellor with vast discretion in issuing remedies and other equitable orders. This is demonstrated by the fact that the establishment of the chancery court made the lord chancellor begin issuing equitable relief to a degree.
In the 15th century, the Court of Chancery separated from the common law court thereby forming a separate legal authority which led to conflicts between the two systems. The equitable approach that provided for the vast discretion of the chancellor was widely criticized for leading to the variability of justice and uncertainty as the decision was dependent on the chancellor’s biases or conscience with minimal application of legal principles (Tucker, 2000). The conflict between the common law and equity system was noted in Earl of Oxford’s Case (1615) where the court sought to address the issue of which system between the common law and equity would prevail in instances where there was a conflict of these structures on a matter. The court in this case established that in instances where common law and equity conflicted, equity should prevail. The court further noted that the role of equity is to correct any wrong or injustice that is not addressed in the common law by providing equitable remedies. Lord Ellesmere in this case noted that the significance of the existence of Equity is based on the fact that it is impossible to make general laws that render justice in all instances. This role was to supplement the remedies issued by the common law through the discretion of the judge. Aristotle commended the establishment of equity in Earl of Oxford’s Case (1615) stating that it was a great social virtue for the realization of fairness in the administration of justice.
Equity continued to develop further with time becoming a more systematic and rule-based system thereby addressing instances raised in the criticism of the chancellor’s reliance on their conscience to make judgments (Tucker, 2000). Within this period, the scope of the discretion underwent significant changes shifting to the discretion of the judge on their own conscience. Lord Nottingham the case of Cook v Fountain (1676) criticized the shifting of the discretion towards the judge’s conscience noting that the court could not do anything as he was prescribed to a certain conscience both civil and political. This decision ignited heated debates on whether the conscience varies. Sir Anthony Mason claims that the essence of equity is the promotion of justice by moving away from the rigidity of the common law by ensuring that the application of the equitable principles including trust and application of discretion of conscience achieves the fair administration of justice (Mason, 1994, p.243). Therefore, the formulation of the rules and principles to guide the application of conscience was essential for the fair administration of justice by the judges of the Court of Chancery. In the case Pride of Derby and Derbyshire Angling Association v British Celanese (1953), the rules and principles that were established for the determination of the equitable remedies were; that the court must consider whether the remedy sought was provided for under the common law and if the remedy provided is adequate or not, the equitableness of the conduct of the plaintiff, and whether the remedy sought will prejudice or lead to undue hardship on the defendant among others. Furthermore, the remedies provided for by equity included injunctions, specific performance, rectification, and rescission (Tucker, 2000). Therefore, through the years before the enactment of the Judicature Act, the principles and norms that the Chancellor developed amassed the body of equity which worked parallel to common law but with another set of remedies.
The application of the rules and principles while exercising discretion was determined to form the key basis on which justice can be achieved without any personal bias of the judge. In the case of Haywood v Cope (1858) the court noted that while exercising discretion, the judge must use the set equitable principles and rules to ensure that there is a fair administration of justice because what is fair is not universal and varies across different persons. In this case, it was determined that, unlike the common law where the parties had the right to remedies, the equitable remedies were grounded on the discretion of the judge to grant or not to grant them. Therefore, the coexistence of those two jurisdictions, common law, and equity, brought about the emergence of procedural issues and inconsistent decisions which led to uncertainty within the legal system. These court systems led to more prejudice than they should have done thereby making such a system not ideal. This conflict between the two court systems led to the enactment of the Judicature Act of 1873 and 1875 combined the two judicial systems through the establishment of the high court. The merging of the two court systems led to the creation of a Single Supreme Court of Judicature having the authority to deal with both common law and equitable issues. This integration aimed to improve procedural efficiency and increase the consistency in judicial decisions. This was noted in the case of Walsh v Lonsdale (1882) where the court established that there only existed one court subject to the enactment of the Judicature Act and therefore the principles of equity would equally be applied. The court noted that in the instances where the rules of equity conflicted with the common law, equitable principles should prevail. This means that the application of equity where the common law is rigid or inadequate makes the single system court essential for coherence, consistency, certainty, and fairness in the administration of justice.
To ensure fairness in the administration of the justice through flexibility of the judges in making decisions, equity has established several maxims. One of the maxims is equity is equality which provides for the court to make a determination that achieves fairness (Jackson and Summers, 2012). This was noted in the key case of Burrough v Philcox (1840) where the court established the assumption of fairness by requiring the conflicting parties to equally share the subject matter of the dispute to ensure each party achieved equity. Further, equity plays a significant role in enforcing parties' intentions or contractual obligations to address where parties might fail to fulfill their obligations or contractual obligations and therefore ensure the continuity of the commercial transactions. This is enforced through the application of the equitable maxims of equity that provide that equity imputes an intention to fulfill an obligation. The court in enforcing the obligations by imputing the intention may either order for specific performance or restitution to ensure there is justice and that the innocent party is not prejudiced. In the case of Walsh v Lonsdale (1882), the court established that in the application of equitable principles and remedies, the court should perceive the intention or obligation in line with a legal obligation and not moral obligations. This is to ensure that there is coherence and certainty and therefore ensure fair administration of justice. Further, any party seeking equitable remedies must ensure they have fulfilled their obligation for them to be granted equitable remedies that they are seeking because equity provides that those who come to equity must do equity. Therefore, where a party fails to act in accordance with the contractual obligation, such party will be denied equitable remedy if they try to seek such remedy due to their failure to perform their mandates.
Equity remains significant in contemporary legal practice as demonstrated in the instances involving trusts and equitable remedies which play essential roles in the enforcement of contractual obligations. Through the law of Trusts which is the pillar of equity trust, equity provides an alternative mechanism for allowing individuals to hold and manage assets for the benefit of others (Fortier, 2016). Equity lays down the ethics, principles, and guidelines for forming a trust and for administering and enforcing it, and trustees are governed by these ethics to act in the beneficiaries' interests. In Re Rose (1952), two doctrine considerations were established when the transferor is transferring the trust property to guide in such instances thereby reducing ambiguities and leading to fairness in such cases. The application of various principles and maxims of equity such as the maxim that provides that equity abhors a vacuum in ownership is therefore essential in trust equity (Watt, 2007). This maxim governs the trust law ensuring that trust is established and operated in accordance with the equitable maxim. In the instances where the trust does not provide certainty of beneficial interest trustee is granted the property as a gift by the equitable remedies. In Paul v Paul (1882), the court established that where the trust is fully constituted, the beneficiaries of the said trusts are entitled to the trust. Furthermore, through the equitable remedies, the parties’ intentions are fulfilled in Lambe v Eames (1871). For instance, where the beneficiary in a trust directs the trustee to transfer the property to a certain person, the equity will deem such transfer valid by enforcing the intention of the beneficiary for the disposition of the said property (Watt, 2007). Equity therefore plays an essential role in ensuring fairness by providing for various maxims and principles that help to resolve conflicts between parties.  
Conclusion
Equity forms an essential part of the legal system of England and Wales as it gives the common law its flexibility by ensuring fairness and equity. Its historical development, institutional structure, and application in modern legal practice emphasize its lasting impact in the pursuit of fair results and overcoming the rigidity of strict legal rules. On the other hand, while equity has been modified to tackle issues relating to the changing society, its discretionary nature raised concerns about conformity and predictability hence the need for regular evaluations and reforms to fair administration of justice. This led to the creation of rules and maxims of equity that were instrumental in the application of equitable remedies until the enactment of the Judicature Act. The Judicature Act merged the court of chancery and common law court to create efficiency and reduce conflict thereby ensuring that equity achieves its mandate of fairness and just administration of justice.  Equity remains significant in contemporary society guiding the management of trusts, and enforcement of legal obligations through equitable remedies.
 
 
 
 
List of References
Books and Journals
Capern, A.L., 2019. Maternity and Justice in the Early Modern English Court of Chancery. Journal of British Studies, 58(4), pp.701-716. https://doi.org/10.1017/jbr.2019.91
Fortier, M., 2016. The culture of equity in early modern England. Routledge.
Jackson, J.D. and Summers, S.J., 2012. The internationalisation of criminal evidence: beyond the common law and civil law traditions. Cambridge University Press.
Mason, A., 1994. The place of equity and equitable remedies in the contemporary common law world. Law Quarterly Review, 110, pp.238-259.
McDonald, I. and Street, A., 2022. Equity and Trusts Concentrate: Law Revision and Study Guide. Oxford University Press.
Mousourakis, G. and Mousourakis, G., 2019. The Development and Function of Equity in the English Common Law Tradition. Comparative Law and Legal Traditions: Historical and Contemporary Perspectives, pp.251-280. https://doi.org/10.1007/978-3-030-28281-3_9
O'Connell, A.M., 2016. Justice and the defense of rights in England and Wales: the case of Equity. Miroirs: Revue des civilisations anglophone, ibérique et ibéro-américaine, (3/2016), pp.50-65. https://hal.science/hal-01325692/
Raffield, P., 2017. Time, Equity, and the Artifice of English Law: Reflections on The King’s Two Bodies. Law, Culture and The Humanities, 13(1), pp.36-45. https://doi.org/10.1177/1743872114534800
Tucker, P., 2000. The Early History of the Court of Chancery: A Comparative Study. The English Historical Review, 115(463), pp.791-811. https://www.jstor.org/stable/580679
Valente, C., 2017. The Provisions of Oxford: assessing/assigning authority in time of unrest. In The Experience of Power in Medieval Europe, 950–1350 (pp. 25-41). Routledge.
Watt, G., 2007. A Review of The Culture of Equity in Early Modern England by Mark Fortier. Law and Humanities, 1(1), pp.140-144.
Case laws
Burrough v Philcox (1840)
Pride of Derby and Derbyshire Angling Association v British Celanese (1953) Ch 149
Cook v Fountain (1676) 3 Swans 585, 600; 36 ER 984, 990
Earl of Oxford’s Case (1615)
Haywood v Cope (1858) 25 Beav 140
Lambe v Eames (1871)
Re Rose (1952) Ch 499
Paul v Paul (1882) 20 Ch D 742, CA
Walsh v Lonsdale (1882) Ch D 9
Statutes
Judicature Act 1873 and 1875