Introduction
In the English legal system, the term ‘equity’ refers to a distinct body of law that developed historically to supplement and, where necessary, remedy the perceived deficiencies of the common law. It is not simply a synonym for general fairness, but rather a set of principles, doctrines, and remedies that operate alongside the common law to provide justice in cases where the strict application of common law rules would lead to an unconscionable result. This essay will explain what is meant by equity by outlining its historical origins, its relationship with the common law, and its key characteristics and remedies.
The Historical Development of Equity
Equity’s origins can be traced back to the medieval period, when the common law courts operated a rigid and formalistic system. Justice was administered through a system of writs, and if a claimant’s problem did not fit neatly into an existing writ, they were left without a remedy (Hudson, 2019). Aggrieved parties began to petition the King directly, who was seen as the ‘fountain of justice’. These petitions were delegated to the Lord Chancellor, who, as the ‘keeper of the King’s conscience’, began to deliver judgments based on principles of fairness and conscience rather than the strict letter of the law.
This practice led to the establishment of the Court of Chancery, which administered this new body of law known as equity. The Chancery Court developed its own procedures and remedies, separate from the common law courts. A fundamental tension arose between the two systems, culminating in The Earl of Oxford’s Case (1615) 1 Rep Ch 1. This case established the principle that where there is a conflict between the rules of common law and the rules of equity, equity will prevail. This principle affirmed equity's corrective role in the legal system.
The Relationship with the Common Law
For centuries, common law and equity were administered in separate courts. This created practical problems, as a litigant might have to bring actions in two different courts to resolve a single dispute. To address this inefficiency, the Judicature Acts 1873-75 were passed. These Acts fundamentally restructured the court system, merging the old common law courts and the Court of Chancery into a single High Court of Justice, with all its divisions capable of administering both common law and equitable rules.
While the administration of the two systems was fused, the intellectual distinction between common law and equitable principles and remedies remains. As has been famously stated, "the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters" (Ashburner, 1933). The Judicature Acts confirmed the supremacy of equity in cases of conflict, a rule now enshrined in section 49 of the Senior Courts Act 1981. Therefore, while modern courts apply both sets of rules, they are still conceptually distinct bodies of law.
Core Principles and Remedies of Equity
Equity is guided by a series of principles known as the maxims of equity. These are not binding rules but are general statements that illustrate the values and approach of equity. Examples include "He who comes to equity must come with clean hands" and "Equity looks to the intent rather than the form." These maxims demonstrate that equity is a jurisdiction founded on good conscience and fairness, operating in personam – that is, against the conscience of the individual defendant rather than against property itself.
A key distinction between common law and equity lies in the remedies they provide. The primary common law remedy is damages (monetary compensation), which is available as of right. Equity, by contrast, developed a range of more flexible, discretionary remedies. These include the injunction (a court order compelling or restraining a particular action) and specific performance (an order compelling a party to perform their contractual obligations). These remedies are not available as of right; the court will only grant them where it considers it just and equitable to do so, taking into account the conduct of both parties.
Conclusion
In conclusion, equity in English law is a body of rules and principles that originated to correct the inflexibility of the common law. Historically administered by the Court of Chancery, it is now applied in all courts alongside common law. While the two systems have been administratively fused since the Judicature Acts, equity retains its distinct identity, characterised by its focus on conscience, its guiding maxims, and its provision of discretionary remedies such as the injunction and specific performance. It functions as a vital supplement to the common law, ensuring that the pursuit of justice is not defeated by procedural rigidity or formality.
References
Ashburner, W. (1933) Principles of Equity. 2nd edn. London: Butterworth & Co.
Hudson, A. (2019) Equity and Trusts. 9th edn. Abingdon: Routledge.
Senior Courts Act 1981.
The Earl of Oxford’s Case (1615) 1 Rep Ch 1.
