You are on page 1of 15



Assess the extent to which the principles of Equity overcame the inherent flaws in the
Common Law system.

The civil justice system was traditionally criticized for delay, cost and complexity.
Examine the recommendations made by Lord Woolf in his reports on civil justice and
examine the extent to which the implemented reforms have improved civil justice.

Before1066 in Anglo-Saxon times, laws were local and would be enforced in manorial,
shire and hundred courts, therefore laws differed around the country. After Normans
conquest there was a more organised system. Royal courts began to emerge from the
Curia Regis (Kings council), who appointed judges that went around the country to hear
cases locally and solve disputes. Gradually, the judges selected the best local laws and
customs and applied them throughout the country, therefore creating common law, which
was common to the whole country.

Curia Regis carried out a number of functions such as acting as a primitive legislature,
performed administrative tasks and exercised certain judicial powers. Eventually courts
split off from the Council and formed the main common law courts. The first to appear
was Court of Exchequer, which dealt with taxation disputes but later extended its
jurisdiction to other civil matters, this was in the time Henry I (1100-1135).

Court of Common Pleas was the next court to be established, which dealt with disputes
between individuals. The Court of King's Bench separated sometime after 1230, which
dealt with criminal and civil cases and developed a supervisory function over activities of
inferior courts.

However there were faults with the common law. Firstly, legal action could only begin
through issuing of a writ. Writs were issued by the clerks in the Chancellor's office,
which was a document setting out the cause of the action or the ground for the action.
Writs were issued to create new rights not recognised by the local courts.

Writ system became extremely formal and overwhelmed with claims that writs were only
allowed if they could fit into an existing one, and if not then no action could be brought,
therefore limiting the number of cases. The clerks began to issue new writs to overcome
these difficulties, as a result creating new legal rights.

Local barons persuaded Parliament to pass a statue called Provisions of Oxford1,

forbidding new writs to be created. The common law became rigid and the rules operated
unjustly, therefore it was attempted to remedy this situation by Statute of Westminster
II2, giving authority to clerks to issue new writs in cases similar to those before 1258.

Secondly, procedure was extremely hidebound, in that if a writ had a smallest error action
was avoid. Also some common law actions were tried by wager of law, which means
party with more support at court would win.

Thirdly, defendant could plead certain defences under common law action known as
essions, this would delay the claimants claim. Also there were complaints about
corruption, bribery and oppression of juries and the bias of sheriffs in favour of the

Fourthly, there was only one remedy in common law which was damages. This was not
always an adequate or the best remedy in some of the cases e.g. nuisance. Fifth, the
common law courts did not recognise trust and mortgages.



Therefore it can be seen that common law are decisions made by courts on previous
cases, judges use previous decisions as a guide for later cases. This is called the doctrine
of precedent.

Equity was defined to be fairness, the idea and development was to mitigate the severity
of common law and to overcome the flaws in common law.

It come about as a result of people that could not seek the right remedy for wrongs
through common law courts, which as result many dissatisfied parties petitioned to the
King as the Fountain of Justice. This was later passed on to the Chancellor, as Keeper
of the King's Conscience. The Chancellor was usually a clergyman who trained in civil
and canon law, which was based on gods and conscience law and therefore contained an
element of natural justice.

By the 15th century the Chancellor started to hear petitions and make decisions on cases
with his own authority and not as substitute of the King, therefore Court of Chancery was

The Chancellor dealt with the petitions on the view of what was right and wrong
according to that particular case rather then previous precedent, therefore it could enforce
rights not recognised by common law that were restricted by precedent.

Litigants could be ordered to appear before the Chancellor by Subpoenas, without the use
of writs, as equity was not bound by the writ system. Litigants could be questioned,
unlike common law courts were oral evidence was not used until 16th century. They also
could be ordered by the Chancellor to disclose documents.

There were no complex rules of evidence or procedure and the Chancellor could order
justice in various ways. The Chancellor used English rather then Latin and juries were not
used rather he was concerned with facts of the case.

Equity recognised and enforced the rights of a beneficiary under a trust. Trusts are where
a settlor conveys property to a trustee to hold on trust for beneficiary. In common law the
trustee was treated as owner of the property and the beneficiary could not claim.

Court of Chancery also helped borrowers who mortgaged their property for a loan, were
it gave the mortgagor the right to pay the loan and recover their property even when
repayment date had passed; this is known as equity of redemption. In common law if loan
was not paid by agreed date the mortgagee become owner of property and the mortgagor
still had to pay loan.

Court of Chancery developed new remedies, which are equitable remedies and it was up
to the Chancery to grant or refuse a remedy. These remedies are specific performance,
this is useful where damages were not adequate. It is an order telling a party to perform
their part of contract. Rectification is a written document is allowed to be changed if it

did not represent the actual agreement made between the parties. Rescission is where
parties to a contract are put back in their original position, in the case of a contract
induced by a misrepresentation. Injunctions are usually an order to stop a person doing a
particular act.

Later these types of justices come to be known as equity.

Common law and equity functioned separately and when overlapped there was conflicts
between them. Court of Chancery was very flexible as precedents were not followed,
each case was judged on its merits and also the more appropriate remedies made equity
popular. The common law courts argued and John Selden a 17th century jurist declared
Equity varied with the length of the Chancellors foot3, so basically the decisions
depended on the qualities of the individual Chancellor.

But the major problem was common law would make an order in favour of one party and
Court of Chancery would make an order in favour of the other and would order an
injunction restraining the party to exercise common law right, this restricting common
law jurisdiction. This was resolved in the Earl of Oxford's Case4, where it was decided
by the King that equity should prevail. By the 19th century equity had developed case law
and recognised principles.


Asif Tufal, English Legal System lecture notes

(1615) 1 Ch Rep 1

Judicature Acts5 established that the separate common law and Court of Chancery would
be replaced by a Supreme Court of Judicature which comprised the Court of Appeal and
High Court. Every judge was empowered to administer both common law and equity in
their courts. Therefore a claimant seeking common law and equitable remedy need only
one action in one court.

The Act did not fuse common law and equity but only their administration and both are
separate and complementary systems of law. Also equity will prevail over common law
when there is conflict.

For equitable to be applied, maxims must be satisfied which were designed to ensure
decisions were morally fair. These are he who comes to equity must come with cleans
hands as seen in D&C Builders v Rees6, he who seeks equity must do equity as seen in
Chappell v Times Newspaper Ltd7and also were delay defeats equity as seen in Leaf v
International Galleries8.

[1966] 2 QB 617
1975 1 WLR 482
1950 2 KB 86

The civil justice system covers wide range of matters and civil claims is said to arise
when there is disputes between individuals or organisations. Most of these disputes are
private but there are public such as taxation, immigration and etc.

Party known as claimants sues other party known as defendant for damages or some other
remedy because they believe their right has been infringed in some way. It is claimant
that has to proof their case but standard of proof is lower then criminal cases, where it is
beyond reasonable doubt. Most civil case are settled before even they go to trial.

The legal process for civil cases developed, responding to the different needs at different
times, therefore at the end of 18th century the civil cases were being dealt with several
different series of courts. The civil cases were being mostly dealt by the three common
law courts, established by Courts of Chancery. There were others such as Court of
Admiralty and church courts. Jurisdiction often overlapped even when they had separate

Access to the courts was difficult as they were centralised in London. As there was no
cooperation of the complex court structure, there were delays, inefficiency and
incompetence. In the 19th century, higher courts could only be afforded by the rich and the
system only benefited the judges and legal professions.

In 1846 a reform began, which established nationwide county courts to provide cheaper,
quicker justice to locals. By 1870s Supreme Courts were established consisting of High

Court which was still divided in to five divisions, Court of Appeal and Crown Court. But
however in 1881 High Court was reduced to three which are Queens Bench, Chancery
and Family Division.

In civil justice system there were separate sets of civil procedure rules before the Woolf
reform was applied. The first was White Book the rules of the Supreme Court. Second
was Green Book for Count Courts. These procedure rules have really three objectives,
firstly to ensure that the facts on which the claim is based are accurately found and
appropriately arranged so that the issue between the parties can be identified.

Secondly, to ensure that the correct and appropriate rule of law are found and applied.
Thirdly to ensure that the remedies set that rule of law can be sufficiently enforced. High
Courts civil action was started with a writ and with County Courts by summons.

Major changes were made to the civil justice system over the years. After Civil Justice
Review of 1985, this was set up by Lord Chancellor in reply to criticism of delay, cost
and complexity by the public in regards to the civil justice system. Some of the
suggestions were implemented. However some of the important proposals made by 1985
review were changed by the Courts and Legal Services Act9, were division of work
between the High Court and Count Courts.

The review wanted to increase the number of cases heard in County Courts, as many
were being heard in High Courts often for small amount rather then County Courts which


were cheaper and quicker, therefore Courts and Legal Services Act1 implemented this
stating small claims will go to County Courts and higher claims to High Court.

In 1994 Lord Chancellor (Lord Mackay) appointed Lord Woolf to carry out a review into
the civil justice system. Lord Woolf produced a report in 1995 and a final one Access to
Justice in 1996, which he identified a number of principles which the civil justice system
should meet in order to ensure access to justice.

It should be just in the results it delivers; be fair in the way it treats litigants; offer
appropriate procedures at a reasonable cost; deal with cases with reasonable speed; be
understandable to those who use it; be responsive to the needs of those who use it;
provide as much certainty as the nature of particular cases allows; be effective:
adequately resourced and organised.10

The defects Lord Woolf identified in the civil justice system was that, it was too unequal
in that there was a lack of equality between the powerful, wealthy litigant and the underresourced litigant.

It was too expensive and that most simple cases incurred the highest costs in proportion
to the value of the claim, in that it often exceed the value of the claim.
That it was too uncertain in that difficulty of forecasting what litigation will cost and how
long it will last established fear and parties would not bring an action.


(Elliot and Quinn page 413- 414)


It was too slow in bringing cases to a conclusion, therefore there were delays. It took 3
years for claim to reach trial in County Court and five in High Court and by the time it
did reach trial witnesses had to remember the event.

It was too complicated in that both the law and procedure could not be understood to
many litigants. It was too fragmented in the way it is organised as there was no one with
clear overall responsibility for the administration of civil justice.

It was too adversarial in that there was tactical manoeuvring rather then cooperation
which cased belays. Cases were run by the parties and not by the courts which caused
delays. Also rules of court were often ignored by the parties and were not enforced by

It was injustice as out of courts settlements were negotiated. Also one shooters who are
going through process only once in life time and would want to get things right but
however repeat players who have gone through the process many times before could
abuse the system as they know how it works.

Too must emphasis was put on oral evidence, which caused proceeding to slow down and
adding to costs.


The main recommendations made by Lord Woolf on civil justice system were given
effect by Civil Procedure Act11 and new Civil Procedure Rules come into force in 26th
April 1999.

Lord Woolf described his proposals as a new landscape for civil justice for the twentyfirst century.

Overriding objective of Civil Procedure Rules is to enable courts to deal with cases justly.
It is explained in more detail in r.1.1(2) which states, simplifying litigation, save costs,
reduce litigation and litigation delays, being fair and dealing proportionality so in other
words change litigation culture.

The implementation and changes to civil justice system are the new terminology meaning
modern language are used to express new rules to simplify it e.g. plaintiff is now
claimant, and writs are now claim forms.

New rules contain a number of features which are designed to encourage parties to settle
their dispute. Firstly, alternative dispute resolution where parties are encouraged at
various stages to use alternative dispute resolution by negotiations, mediation,
conciliation or arbitration.




Secondly, by pre-action protocols to push parties into behaving reasonably during pretrial stage, this operates like code of practice. Protocols include timetables and use of
expert witness.

The High court and County Court become a single jurisdiction operating to a common set
of procedural rules.

The other changes are case management this is where cases are allocated to one of the
three depending on their value and complexity. Small claims track is for all cases up to
5,000, except personal injury and housing cases where limit is 1,000. These cases are
dealt with by the judge following any procedure they consider fair, usually in Count

Fast track claims are between 5,000 and 15,000. These cases are heard by County
Court within 30 weeks. Timetable is set by judges to ensure case can be tried on time.
Normal time hearing is 3 hours but the absolute maximum of one day.

Multi track for all cases over 15,000 or under if cases are complex. Judges manage
cases, setting and monitoring timetable that needs to be followed by parties. The High
Court deals with multi track cases.


Therefore implementing the reforms has improved the civil justice by the total amount of
litigation, which has fallen since April 1999. The number of fast track trials, in particular
have dropped sharply in many courts and the rate of settlement has increased.

However it is important to note that it is hard to see what an effect Lord Woolf reform has
had as there were other factors that come into an effect at the same time or shortly
afterwards, these included the withdrawal of legal aid from some civil claims e.g.
personal injury.

The Legal Services Commission and Law Society introduced tougher standard of control.
Also Human Rights Act12 was implemented.




Reference Text Books
Elliot, Catherine and Quinn, Frances. (2004) English Legal System. Fifth edition. Great
Britain: Person
Martin, Jacqueline. (2002) English Legal System. Third edition. Great Britain: Hodder
& Stoughton
White, C.A., Robin. (1999) English Legal System in Action. Third edition. Great
Britain: Oxford University Press
Keenan, Denis. (1995) Smith & Keenans English Law. Eleventh edition. Great Britain:
Pitman Publishing

Lecture Materials
English Legal System Lecture/ Seminar notes

Internet Websites
Asif Tufel. English Legal System, Civil Justice System, lecture notes. Available from:
[Accessed 21st November 2005]

Law Reports
All England Law Reports
The Digest