What had previously been the respective roles of each? Was chancery court system the last one to finally be subsumed by the common law courts? What social and political forces drove this change and what political implications did it have?
Any authoritative textbook on Equity and Trusts can answer this question.
1.2.2 The effect of the Judicature Act 1873
The distinction between equity and the common law was both practically and intellectually significant before the Judicature Act 1873. Before that Act came into full effect in 1875 it was necessary for a litigant to decide whether her claim related to common law or to equity. To select the wrong jurisdiction would mean that the claim would be thrown out and sent to the other court. So, if a claim for an equitable remedy were brought before a common law court, that common law court would dismiss the claim and the claimant would be required to go to the Court of Equity instead. This problem was explained in Charles Dickens’s Bleak House in the following way:
Equity sends questions to Law, Law sends questions back to Equity; Law finds it can’t do this, Equity finds it can’t do that; neither can so much as say it can’t do anything, without this solicitor instructing and this counsel appearing.
So it was that the litigant trudged disconsolately between the various courts seeking someone who could deliver judgment on her claim. Judges like Lord Eldon and Lord Cottenham were well-known for the delays in reaching their judgments which could take several years. This was a part of the ‘groping and floundering condition’ which Dickens observed in the High Court of Chancery. It should also be recalled, as outlined above, that Lord Macclesfield was convicted of embezzlement while acting as Lord Chancellor and Lord Bacon was also found to have accepted ‘presents’ (which today we would consider to be bribes) in office. 74 Consequently, the reputation of the chancery courts was very low by the late 19th century. The popular conception of equity – and one which accords with the reality – was that the chancery courts were expensive and caused extraordinary delays.
By 1873 pressure had built for reform, and Dickens played an important part in that.75 This led to the enactment of the Judicature Act 1873. There were two particular objectives: one to fuse equity and common law, and the second to reorganise the courts. The fusion of common law and equity took the shape of permitting any court to award common law remedies or equitable remedies without the need to petition one particular court or another. 76 Instead proceedings were simply begun in the High Court, which was divided into the divisions we recognise today. Lord Watson explained that the purpose of the Judicature Act as being ‘to enable the parties to a suit to obtain in that suit and without the necessity of resorting to another court, all remedies to which they are entitled in respect of any legal or equitable claim or defence properly advanced by them, so as to avoid a multiplicity of legal proceedings’.77
The result of the Judicature Act 1873 was that the practical distinction between common law and equity disappeared. However, it is vitally important to understand that the intellectual distinction remains. Significantly s 25 of the Supreme Court of Judicature Act 1873 provided:
Generally, in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail.
Thus the principles of equity prevail over the principles of common law. The decision in the Earl of Oxford’s Case thus received a statutory form. So, in cases like Walsh v Lonsdale78 where there was a clash between a failure to comply with a common law rule as to the proper creation of a lease (which would have held the lease to be unenforceable) and the equitable doctrine of specific performance of contracts, it was held that the equitable principle of specific performance would give effect to the agreement to provide a lease.
The passage of this legislation was not without its own perturbations. This fusion of common law and equity raised concerns from many equity practitioners. Previously, practitioners and judges before the chancery courts had been specialists in equity. Now, or so the argument ran, there would be practitioners and judges dealing with the culturally different principles of equity who had only previously been trained in common law. Such people referred to this process of fusion of common law and equity as being, in truth, a confusion of common law with equity. Whether or not that has turned out to be the case can only be established from a study of the materials in this book. There has not, it is suggested, been any obvious step-change between the rigidification of the principles of equity under Lord Eldon in the early 19th century and the decisions reached after the 1873 Act. Equity clearly functions now on the basis of the doctrine of precedent, but that is not due in particular to the 1873 Act. As considered below, the intellectual sophistication necessary to reach judgments on the basis of conscience on a case-by-case basis and yet in accordance with general principles has emerged in the late 20th century and at the beginning of the 21st century, as considered at the end of the next section.
As considered below, there remains a division between certain claims and remedies which are available only at common law, and other claims and remedies available only in equity.
Alastair Hudson, Equity and Trusts (2022, 10 edn, Routledge), pages 15-6.