Equity
Class 01 - Introduction and Historical Background
• Hilary Delany, Equity and the Law of Trusts in Ireland (5th edn, Round Hall 2011)
Chapter 1
• Look out for themes: discretionary nature of equitable jurisdiction; to what extent does
unconscionability underpin equity.
A. The Relationship between Law and Equity
• Equity intervened to provide alternative remedies or to supplement the Common Law,
which was said to be strict. The Common Law was too black and white: it did not take
into account mitigating circumstances. The Lord Chancellor heard petitions from. Equity
introduced remedies such as injunctions. The Lord Chancellor developed his own court,
the Court of Chancery. There was competition between judges to bring claims to their
own court. Eventually, the Lord Chancellors were common lawyers and tried to introduce
precedent into the rules of equity. Lord Eldon made the famous reference to the length of
the Lord Chancellor’s foot. The Judicature Acts merged the courts systems. The 1877
Act in this jurisdiction replaced the separate courts of common law and equity. Section
28(11) of this Act provided that if any conflict of equitable and common law principles
arose, equitable principles will prevail. A question arises as to whether this fusion also
fused the principles of common law and equity, or whether it was merely procedural.
• Salt v Cooper (1880) 16 Ch D 544 (CA) 549 (Sir George Jessell MR): ‘But it was not any
fusion, or anything of the kind, it was the vesting in one tribunal the administration of law
and equity in every cause, action or dispute which should come before that tribunal’.
• Walsh v Lonsdale (1882) 21 Ch D 9 (CA) 14 (Sir George Jessell MR): ‘there are not two
estates as there were formerly, one estate in common law by reason of the payment of
rent from year to year and an estate in equity under the agreement. There is only one
court and equity rules prevail in it’.
• Ashburner in his Principles of Equity believed that it maintained a substantive distinction,
but procedurally one court would administer these different rules.
• In United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904, 924-925
there was a rent review clause at issue; the landlord had complied with the time frame to
use the rent review clause; the tenant claimed that the landlord had missed his chance to
use it. The House of Lords held that delay did not affect equity and allowed the landlord
to use the rent review clause. Lord Diplock noted that ‘the two systems of substantive
law formerly administered by the courts of law and chancery (…) were fused’.
• Hynes v Independent Newpapers Ltd [1980] IR 204, 216 considered a similar set of
facts, where there had been a 6 month delay. O’Higgins CJ made a similar comment,
noting ‘the fusion of common law and equitable rules being initiated by the Judicature Act
1877’.
• In *Tinsley v Milligan [1994] 1 AC 340 (371, 375) two women bought a house. They
defrauded the Department of Social Security in the UK, by claiming that one of them
claimed to be the owner of the house. The defendant, who had contributed half the price
of the house, argued that she was entitled to part of the house. However, the property
was in the legal name of the plaintiff. Applying resulting trust principles to this case, the
defendant was successful in her claim. The House of Lords commented extensively on
the Common Law and Equity. There was no sense of a mixing of principles.
• In *Meagher v Dublin City Council [2013] IEHC 474 [17]-[32] there appeared to be a
breach of contract; however there was a very lengthy delay between the matter and its
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coming to the High Court. Hogan J considered the United Scientific and Hynes cases.
He considered that the comments of the House of Lords and Supreme Court had not
given rise to a fusion of substantive principles. He described O’Higgins CJ’s comment as
‘stray’. The defendant argued laches and as such that it would be unfair to award
damages. There was an agreement to provide hostel facilities. The defendant believed
that the equitable doctrine of laches should apply, notwithstanding that this was a
common law claim. Hogan J dismissed this argument being of the view that it does not
apply. If the Statute of Limitations applied and was complied with, then equity shouldn't
be applied to prohibit the remedy.
• Baker, ‘The Future of Equity’ (1977) 93 LQR 529 is of the view that the distinction
between the two systems of law is still valid. Hilary Biehler believes this is the correct
view, eg remedies remain discretionary in equity.
• *Jill Martin, ‘Fusion, Fallacy and Confusion: A Comparative Study’ [1994] Conv 13 argues
that the view that flexibility and capacity for development is best achieved by
disregarding the legal or equitable origins of causes of action, remedies or defences is
misconceived. She asserts that it does not seem that the fusion fallacy evidenced in
cases such as United Scientific has become established in England; on the contrary
there has been a return to orthodoxy. This is apparent from decisions of the House of
Lords which contain meticulous analysis of the separate common law and equitable
origins and principles in various areas, eg illegality in Tinsley v Milligan [1994] 1 AC 340,
which she argues does not seek to attribute substantive effect to the Judicature Acts but
to facilitate harmonious development of the common law and equitable rules of illegality.
Martin concludes that while the two systems are working more closely together they are
not yet fused.
• Andrew Burrows, ‘We Do This at Common Law but That at Equity’ (2002) 22(1) OJLS 1
argues that the Judicature Acts were capable of bringing about a fusion which is actually
a good thing. He advocates the irradiation of the ‘needless differences in terminology
used, and the substantive inconsistencies, between the common law and equity’.
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