Have the Judicature Acts Fused Common Law and Equity

HAVE THE JUDICATURE ACTS FUSED COMMON LAW AND EQUITY? The reorganization of the courts carried out by the Judicature Acts 1873 and 1875  produced one Supreme Supreme Court administering both law and equity. Although Although for the sake of convenience, the High Court, dealing with cases at firs t instance, was divided into divisions, every judge of each division was, by Section 24 of the 1873 Act, given the power and duty to recognize and give effect to both legal and equitable rights, claims, defences, and remedies. Furthermore, by Section 25, provision was made for situations in which the rules of law and equity were in conflict. After dealing specifically with a number of particular cases, it was provided in general terms that in all other cases in which there was a conflict or variance  between the rules of equity and the rules of common law with reference to the same matter, the rules of equity should prevail. 3.1 THE EFFECT OF SECTIONS 24 AND 25 OF THE JUDICATURE ACT Before the Judicature Acts, there were cases in which common law and equity had different rules that might give rise to inconsistent remedies. In such cases, the t he equitable rule would ultimately prevail by means of the grant of a common injunction. Section 24(5) abolished the common injunction, but even without this, the result in any particular case would have been the same as before the Act in litigation in the High Court, because, every  judge was bound to have have regard to all equitable rights, claims, defences, and remedies. Prior to the Acts, there should have been different rules relating to the same subject matter matt er in different courts, it would have been even more strange if thes e conflicting rules had continued to exist when both were being administered in the same court, notwithstanding provisions as to which rule should prevail. Section 25(11) provides to the effect that after dealing with particular cases and there are conflicting rules, in the sense referred r eferred to above, the legal rule is abolished and the equitable rule is to replace it for all purposes in all the courts. The court in such cases has henceforward only one rule to enforce. It should be noted that Sections 24 and 25 did not apply in some instances where the rules of equity and principles of common law did not conflict. For instance, t here is no remedy per se in equity for the breach of a contract voluntarily entered into whereas, common law would award damages. At times, the remedies available in equity and common law might  be different but still compatible. For instance, common law would award damages for nuisance while equity would grant injunction to restrain further commission of the tort. These and many other instances imply that the Judicature Act itself is not all-encompassing. Invoking the provision of S.25 (11) of the Act, the court held in Berry v Berry[1] that equitable rule prevailed where a separation deed had been vari ed by a simple contract, but this was no defence to an action in law while equity recognised such variation as effective. 3.3 HAS THE JUDICATURE ACT FUSED COMMON LAW AND EQUITY OR MERELY THEIR ADMINISTRATION?

The oft-quoted expression of Ashburner that ‘the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters’[2] represents the orthodox view that there has been merely a fusion of the administration of law and equity. Lord Denning, MR opined that both law and equity are fused.[3] The latter view was echoed  by Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council[4]: My Lords, if by ‘rules of equity’ is meant that body of substantive and adjectival law, that  prior to 1875, was administered by the Court of Chancery but not by courts of common law, to speak of the rules of equity as being part of the law of England in 1977 is about as meaningful as to speak similarly of the statutes of Uses or of Quia Emptores. Historically all three have in their time played an important part in the development of the corpus juris into what it is today; but to perpetuate a dichotomy between rules o f equity and rules of common law which it was a major purpose of the Supreme Court of Judicature Act 1873 to do away with, is, in my view, conducive to erroneous conclusions as to the ways in which the law of England has developed in the last 100 years. A learned Attorney, Baker, has vehemently criticized this opinion of His Lordship and maintained that it is untenable. According to him, no one thinks that the rules of equity have remained unchanged since 1875 —  they have developed in the same way as rules of common law. As to the comparison with Quia Emptores, Baker observes that this is still in force today and is said to be ‘one of the pillars of the law of real property’.[5] In fact, it is a complete misconception to posit that it was a purpose of the Judicature Acts to do away with the dichotomy between rules of equity and rules of common law. While introducing the second reading, the Attorney General said[6] categorically that ‘The Bill was not one for the fusion of law and equity’ and he went on to explain what the purpose of the Bill was: The defect of our legal system was, not that Law and Equity existed, but that if a man went for relief to a Court of Law, and an equitable cla im or an equitable defence arose, he must go to some other Court and begin afresh. Law and Equity therefore, would remain if the Bill  passed, but they would be administered concurrently, and no one would be sent to get in one Court the relief which another Court had refused to give. . It was more philosophical to admit the innate distinction between Law and Equity, which you could not get rid of by Act of Parliament, and to say not that the distinction should not exist, but that the Courts should administer relief according to legal principles when these applied, or else according to equitable principles. T at was what the Bill proposed, with the addition that, whenever the  principles of Law and Equity conflicted, equitable principles should prevail. The view that only the administration of the two systems has been fused was reasserted by Mummery, LJ. Where he said that the Judicature Acts: ..were intended to achieve procedural improvements in the administration of law and equity in all courts, not to transform 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 goods.[7]

It is clear that a decision of the court would depend on the merger of the principles of common law and equity as done in Walsh v Lonsdale[8], but there may be a merger of sta tute of common law and equity as in the case of law of real property. Thus, it will be out of place to assert that both common law and equity have been fused. Moreover, there is duality of legal and equitable ownership in the institution of trust with different effects makes the argument of fusion of the duo an error. As stated earlier, legal and equitable rights, though may co-exist, as in the case of Walsh v Lonsdale (supra), the effect ma y not be so, for a third  party has purely equitable rights, which can only be enforced by equitable remedies. Thus, an equitable owner cannot purely as such sue in conversion: MCC Proceeds Inc v Lehman Bros International (Europe), CA, (supra). The provision of Section 49 of the Supreme Court Act of 1981, which replaced the  provision of Section 25(11) of the Judicature Act 1873 still recognised the continued separate existence of the doctrines of equity and principles of common law. It is note-worthy that those who opine the fusion of equity and law have failed to  proffer more explanations to buttress their stand and have closed their eyes on the arguments of those who stand on the fusion of only the administration of the s ystems. Lord Millett, who wrote extra-judicially that the Judicature Acts, had the effect of fusing law and equity to the extent that they have become a single body of law rather than two separate systems of law administered together is now discredited[9], for he failed to justify his stand. In fact, his reference to the view of a Newzealand Judge did not help in the least because the latter also  posited that: ‘Neither law nor equity is now stifled by its origin and the fact that both are administered by one court has inevitably meant that each has borrowed from the other in furthering the harmonious development of the law as a whole.’[10] From all indications, it is crystal clear that the prevailing view appears to be that, although the two systems operate closely together, they are not fused. In MCC Proceeds Inc v Lehman Brothers International (Europe)[11], Mummery J said that the substantive rule of law was not changed by the Judicature Acts. These were intended to achieve procedural improvements in the administration of the law and equity in all courts, not to transform equitable interests into legal titles or to sweep away the rules of the common law. The distinction still remains between equitable and co mmon law remedies just as there remain differences between common law and equitable rights.