The law of England and Wales could be described as a body of rules, some of which are defined by legislation, others that have evolved through centuries of judgments being delivered in the courts. The latter is known as the common law of the country and is based on the legal precedents or rules developed from these cases. There is, however, a third source of law in England – that of Equity – which serves to act as a supplement to the laws of England, stepping in to enhance its application where the result would be contrary to natural justice or too harsh.
Equity introduction: the origins of equity
In the 11th century, as the common law developed a claimant could only bring a case if it fell within the strict forms established. In relation to property, for example, they had to show legal title.
Often a claimant had an interest in property that fell short of this, and which arguably it would be unjust to deny, such as in early forms of trusts where the property was conveyed to one person with the intention that it was held for the benefit of another.
In that situation, where justice was denied through the courts, the claimant could petition the King. The Lord Chancellor would deal with the petitions on the King’s behalf. Thus a two-court system evolved, one dealing with the common law with it’s more rigid rules, and one administered by the Court of Chancery based on legal principles, fairness and flexibility.
The two bodies of law were often seen as being in contradiction. Where the two laws conflicted, equity would prevail.
One common example of equity in practice is the law of trusts. Trust evolved as an equitable addition to property law and was used where one person held legal title to a property, but the courts held that it was fair, just and equitable that the legal owner used the property for the benefit of another. This was the first legal recognition that there could be a split between legal and beneficial ownership.
In the 1870s the primacy of Equity was enshrined in law through the Judicature Acts. This legislation also combined the two courts into one court structure, although the two systems of law remain distinct. The majority of modern courts apply both sets of rules to proceedings.
Equity introduction: The Equitable Principles
Equitable principles are expressed as a series of legal maxims, which reflect the more flexible application of this strand of the law. They can be deviated from in specific cases, and individually do not cover the whole ground. The most commonly referred to maxims are:-
1. Equity sees that as done what ought to be done
2. Equity will not suffer a wrong without a remedy
3. Equity delights in equality/Equality is equity.
4. One who seeks equity must do equity.
5. Equity aids the vigilant not the indolent.
6. Equity imputes an intent to fulfil an obligation
7. Equity acts on persons rather than objects
8. Equity abhors a forfeiture
9. Equity does not require an idle gesture
10. He who comes into equity must come with clean hands
11. Equity delights to do justice and not by halves
12. Equity will take jurisdiction to avoid multiplicity of suits
13. Equity follows the law
14. Equity will not assist a volunteer
15. Where equities are equal, the law will prevail.
16. Between equal equities the first in order of time shall prevail
17. Equity will not complete an imperfect gift
18. Equity will not allow a statute to be used as a cloak for fraud
19. Equity will not allow a trust to fail for want of a trustee
20. Equity regards the beneficiary as the true owner.
They overlap and create a system designed to remove injustice from the application of common law. The overriding message is that equity acts on the person and will not suffer a wrong to be without a remedy.
Equity introduction: what remedies are available in the Law of Equity?
Remedies are….
Equitable remedies offer typically more flexible and arguably more intuitive solutions to a dispute than other forms of remedy They tend to be used by the courts where non-equitable remedies such as damages would not provide an adequate solution for the claimant. They also differ from other remedies available to a claimant as their application is at the discretion of the court based on the facts of the case.
Examples of equitable remedies include:
1. Injunction
2. Specific performance
3. Account of profits
4. Recission
5. Rectification
6. Equitable estoppel
7. Specific property remedies, such as constructive trusts.
8. Subrogation
9. In very specific circumstances, an equitable lien.
10. Equitable compensation
11. Appointment or removal of fiduciary
12. Interpleader
For equitable remedies to be available, a claimant would have to show that there had been an infringement of a right, and that equity should provide an alternative to damages.
In practice, the two most commonly used remedies are generally injunctions and specific performance.
An injunction is mainly used to stop someone from doing something. For example, an injunction may be used to stop a building project from commencing, or from preventing publication of a potentially damaging material.
Specific performance can be used to direct a party to do something, such as performing a contractual obligation.
Equity introduction: How does Equity work in practice?
‘Equity sees that as done what ought to be done’ is often the first equitable principle mentioned and it has many modern day practical examples.
Put more simply this principle means that when you are required by law to perform an act, equity will regard this to have been done as it ought to have been done, even before it has happened. This gives rise to the concept of ‘equitable conversion’.
Equitable conversion acknowledges an interest in the outcome of a contract before the terms of that contract have been performed. This has consequences for both parties if something goes wrong. So, for example, if you enter a contract for the sale of property, the buyer is considered to have obtained an equitable right that becomes a legal right once the transaction is completed. This equitable interest in the outcome of the contract means that if there is a breach, the buyer may be entitled to specific performance.
Alternatively, this principle will step in where a technical breach of a contract term has occurred, but that breach has significant and unduly harsh consequences. So, for instance, where a life insurance policy has lapsed due to failure to pay premiums, the equitable principle could be invoked. This happened in a case where the letter from the insurer advising of the failure to pay, and the consequent risk of cancellation, was not received by the policyholder. If it had been received by the policyholder, who was terminally ill, the payments would have been made, and the policy would still have been in force at the time of his death. The insurance company agreed that the matter should be dealt equitably and as if the policyholder had made the payments. They allowed his widow to receive the sum assured, less the outstanding premiums.
Seeking legal advice
As the equitable principles can be applied by all courts in England, recourse to them is not uncommon. In cases where the standard legal remedies don’t provide adequate redress, knowing which equitable remedies may be able to assist is critical to ensure that justice is done. This branch of law is not without its difficulties though, and it is always advisable to speak to a solicitor to fully understand how the law may work for you.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
