WHAT IS EQUITY?

What is a fiduciary relationship?

A fiduciary relationship is a relationship of trust and confidence.

Competition between equity and law

As the number of cases proliferated, the court developed: cases were heard by the Lord Chancellor, the Master of the Rolls and by the Lords Commissioners. In 1813, the first vice-chancellor was appointed. The Lord Chancellor could, and did, sit as a judge of first instance until the Supreme Court of Judicature Act 1873.

Current approach to equity?

Conscionability is underlying principle. This has seen something of a revival recently. Equity operates on the conscience of the owner of the legal interest

equity follows the law

Equity cannot overrule statute; and equity will not overrule common law unless there is unconscionability. However, where there is a conflict between an existing principle in equity and a common law rule, the principle in equity will prevail. See Supreme Court of Judicature Act 1873.

Principles?

Equity draws on principles of 'fairness', 'justice', 'morality' and 'ethics'. Underlying all these is the principle of 'conscionability'. It is said to moderate the harshness of the Common Law.

Dudly v dudly

Equity is no part of the law, but a moral virtue, which qualifies, moderates and reforms the rigour, hardness and edge of the law.

Equitable maxims?

Equity will not suffer a wrong to be without a remedy Equity follows the law Where there is equal equity, the law shall prevail Where the equities are equal, the first in time shall prevail Delay defeats equity He who seeks equity must do equity He who comes to equity must come with clean hands Equality is equity Equity looks to the intent rather than to the form Equity looks on as done that which ought to have been done Equity imputes an intention to fulfil an obligation Equity acts in personam

Fusion of two jurisdictions

However, by 1873, two main problems were seen to exist: the Chancery courts were slow; and they would, where appropriate, refuse jurisdiction, requiring the plaintiff to resubmit his or her case to a Common Law court.

Are they actually fused? NO

The other 'two streams' school, holds that the: "the two streams of jurisdiction, though they run in the same channel; run side by side, and do not mingle their waters." Ashburner, Principles of Equity, 2nd Ed., 1933, p.18 In this view, the principles developed by the Court of Chancery remain separate: a legal right remains a legal right; and an equitable right remains an equitable right, although both may be administered in the same court.

Conscionability?

a third party will be bound in Equity, if they are aware that the factors that should engage the defendant's conscience - objectively measured

Are they actually fused though? YES

the first holds that the two jurisdictions are effectively fused, in that all courts may look to precedent from Equity and Common Law, and are obliged to apply the rules of Equity where there is a conflict. This means that there is a growing body of precedent, post 1873, in which whether the original judgement was based on Equity or Common Law is not relevant.