The English Legal System


Law 9084

The English Legal System

The English Legal System


Equity is one of the easiest topics that is assessed every year. There is nothing much to it, however, make sure that you are well-versed with the cases and dates. That is what’s going to help you stand out from a million candidates and score an A.

Over the centuries, England and Wales ' law was built up very progressively. There is not only one way to create or improve the law; several different approaches have been used, and they are still being used. Usually, these techniques are referred to as sources of law. Historically, customs and judges ' decisions were the most important ways to make decisions. But now it can be said that the English saw it has three arms:

1. Acts of parliament 
2. Common law
3. Conventions. 

As Parliament became more dominant in the eighteenth and early nineteenth centuries, legislative actions were the primary source of new legislation, while judicial decisions were still relevant as they formulated parliamentary rule and covered loopholes where no statutory law remained.

During the 20th century, statutory law and judicial decisions remained the main sources of law, but two new sources of law became more and more important: delegated law and European law.


These are behavioral rules that develop without it being intentionally created in society. There are two main types of custom: general and local.

1. General customs

Historically, it is known that these were very relevant because they were, in essence, the foundation of our common law. It is assumed that after the Norman conquest (as the world was slowly put under centralized government), the judges appointed by the rulers would move around the country, making these decisions in the name of the King based on at least some of their traditional customs decisions. In the 17th century, this notion prompted Lord Justice Coke to define such practices as' one of England's greatest rule triangles.'

Nevertheless, this idea is contested by other analysts. Today, Michael Zander argues that the judges have almost definitely created a high proportion of the so-called traditions. In any event, it is known that general practices have been incorporated into laws or case law for a long time and are no longer a new source of law.

Summary: Precisely, customs are the prevalent practices that take place in an area and are later considered laws. 

2. Local customs

This is the word used when a person claims to have the right to some specific privilege, such as a right of way or a right to use the property in a special way, as this is what has always existed historically. Those customs are the exception rather than the land's general law and will only exist in that region.

Since there were (or still are) exemptions to the general common law, the judges developed a system of extensive testing or obstacles from the beginning of a history that had to be met before any particular practice was accepted.

Such measures still exist today and are used on rare times where, owing to a local custom, a petition to a privilege comes to court. The measures are the following:

I. They must be' time immemorial, 'meaning that the tradition must have prevailed for a longer time period. 

II. The tradition had to be practiced in a peaceful open, and proper manner.

III. The place, existence, and context of the tradition must be definitive.

IV. The custom must be reasonable.

It is very unlikely for the courts to find a different tradition today and even rarer for the judge to decide that it will be accepted as a legal practice, but some such instances have existed. In Egerton v Harding (1974), for instance, the court ruled that a traditional obligation exists to fence property against cattle straying from the common.

Another example was New Windsor Council v Mellor (1974), where a local authority was prohibited from constructing on the property because local people argued there was a tradition that they had the ability to use the ground for legitimate activities. 

Though customs that grow, they are only acknowledged by the courts as part of the law; it is the judges that determine that customs will be accepted as enforceable by law.

Common Law

Apparently, the England and Wales legal system was not able to rely entirely on customs. Even in Anglo-Saxon days, there were informal courts that settled conflicts, but a more centralized network of courts arose only after the Norman conquest in 1066. 

This was because the Norman kings realized that if they regulated the legal system, along with other things, it would have been easier to manage the country.

William the Conqueror, the first Norman ruler, created the Curia Regis (the Court of the Ruler) and selected his own judges. The lords who had a disagreement were invited to apply for the issue to be resolved by the King (or his judges).

Development of Common Law

The judges were sent to big cities to determine certain important cases. While these courts were also used to do so. It indicated that judges were moving across the land under the King's command

All these journeys started in London. Such visits became more frequent in the days of Henry II (1154–89), and Henry divided this country into' circuits' or places to be toured by the judges.

Originally the judges would use the local customs or the old Anglo-Saxon rules to determine proceedings, but it is assumed that the judges on their return to Westminster in England would evaluate with each other the regulations or practices they had used and the judgments they had made.

The judges gradually selected the best methods, and all the judges across the nation followed them. This had the consequence that the rule has become standardized or ' normal ' across the nation, and the term ' common law ' seems to have originated from here.

The crux is that the king used to send judges to the whole England and wales in order to solve their issues based on their customs. Every year they used to come back to London and on their way discuss the best practices of all and use them in their regions. The customs then turned into common law. 

Definitions of Common Law

Common law is the foundation for today's law; it is an unwritten law that has grown from traditions and court decisions. The term ' common law' is still used to differentiate rules established by court decisions from laws created by legislation or other laws. Murder, for instance, is a felony under common law, while robbery is a crime by legislation.

This implies that murder was never specified in any legislative statute, but murder is now established by the 1968 Murder Statute. Common law also has another definition in that it is used to differentiate between laws established by the courts of common law (the courts of the King) and justice rules formed by the Lord Chancellor and the courts of the Chancery.


Historically, this has equity an important source of law, and it still plays a major role today as many of our legal concepts have evolved from fair principles. The word 'equity' means 'fairness,' and that is the foundation over which it works when it is introduced to our law.

The Development of Equity

Equity was formed as a result of common law questions. Only some kinds of cases have been identified where they were a result of the common law. The rule was also quite complex; the claimant would lose the case if there were a mistake in the legalities.

The big problem was the reality that the only relief that could be provided by common law judges was' damages'–that is a requirement that the defendant compensates the appellant (now the plaintiff) a sum of money as restitution. This would not, in some situations, be the right way to handle things between the parties.

For instance, in trespass on the property, a defendant might construct a building on their neighbors land. The house would still be there, and the complainant would have denied the use of that portion of his estate. The claimant would want the house to be demolished. In such a case, rather than being given money as reimbursement, the equity will rule to demolish the building.  

If a painting has a sentimental value and someone steals it and sells it, under equity, the judgment will be to return the painting and not give back the money.

In common-law courts, individuals who could not receive justice made an appeal directly to the King. The majority of the cases were assigned to the Chancellor of the King. The Chancellor was both an attorney and a priest and became regarded as the King's conscience keeper. This was because the Chancellor focused his judgments on the ideals of equal justice and fairness, giving a judgment about what in the particular case seemed to be' correct' rather than strictly following prior rulings. He was also willing to look past legal papers, which the common law courts declared legally binding, and to take into consideration what the parties plan to do.

The Chancellor employed new guidelines, for example, subpoenas, to ensure that the rulings were' just,' and required a witness to attend court or face incarceration for refusing to follow the direction of the Chancellor. He also introduced new solutions (known as remedies) that enabled plaintiffs to be compensated more fully than the remedy of damages under common law. The most reasonable solutions were: injunctions, specific performance; rescission; and rectification. All of these are still in use today

Finally, a Chancellor-controlled Court of Chancery arose that certain regulated justice or equity laws. Equity was not a proper legal system; it simply filled the common law loopholes and relaxed the rigid common law laws.

The Tension Between Equity and Common Law:

Common law and equity structures worked very independently, so it was not shocking that the differences between the two systems culminated in the tension between them. One of the main issues was that the common law courts would make an order in support of some side and order in favor of the other party by the Court of Chancery.

The dispute was completely resolved in the case of the Earl of Oxford (1615) when the King decided that equity would prevail; in other terms, the Chancery ruling was the one that the party had to obey. This court's decision strengthened the equity stake and was included the same rule in s 25 of the 1873 Judicature Act.

Equity is the law based on common sense and it must prevail. However, in recent times Act of Parliament wins over equity. 

The Operation of Equity

Originally, as already been mentioned, the Chancellors had few rules to use. Nonetheless, a set of maxims that laid the foundation of the laws on which equity acted became established as time went by. Judges became more inclined to follow previous decisions as equity became more formal. Nevertheless, the legal precedence standard extends to arbitration proceedings, just as it does to common law situations.

Equitable Maxims

Many of the laws that are focused on equity are represented in a series of statements. The following are the most important of these maxims.

In the case of Berry v Berry (1929), where a deed was considered to have been changed by a clear contract, equity looked at the purpose and not the shape. Under the laws of common law, an act could only be amended by another statute, so equity agreed that, since the participants wished to modify the act, it would be fair to look at that purpose rather than at the possibility that they were incorrect with the formalities.

1. Anyone who goes to the court must go with clean hands:

Remedies will not be given to a claimant who has not behaved reasonably. This is shown in D & C Builders Ltd v Rees (1965), where Mr. and Mrs. Rees had been employed by a small building firm. The total bill was £ 732, of which Mr. and Mrs. Rees had previously paid £ 250. When the builders asked for the remaining £ 482, the Rees, who knew the builders were in financial trouble and urgently needed money, claimed the work had not been done properly, and they were only willing to pay £ 300. 

The contractors eventually agreed to accept the £ 300 at the close of the contract, but then prosecuted the Rees for the remaining £ 182. In common law, part payment of a loan is not allowed to settle the debt and could be sued by the owners. Nevertheless, the law has an equal estoppel presumption under which the courts may rule that the complainant is prohibited from obtaining the most.

Judgment: Lord Denning declined to enforce the theory of equitable estoppel at the Court of Appeal because the Reeses took undue advantage of the fact that they believed the contractors were in financial trouble. So far as equity was concerned, the Reeses had not come to court with 'clean hands.' The Reeses had not appeared before the court with' clean hands' in terms of equity

2. Delay Defeats Equity:

This ensures a claimant must not wait too long before making a claim because it could contribute to discrimination to the other side. A painting was offered to a claimant in Leaf v International Galleries (1950), which was wrongly thought that it was made by Constable. 

Moreover, this mistake was made by both parties. The court did not grant the equitable rescission option, as there was a five-year gap between the settlement and the ruling that Constable was not the artist for the painting.

3. Equity will not Accept a Mistake to be Without a Remedy:

This enables equity to create new solutions if otherwise the claimant would not have an appropriate redress for the situation and could only seek the relief in negligence in common law. This principle makes it possible for investors to continue developing innovative solutions as required, such as freezing orders and search orders.

It is important to know the case facts for all these maxims as these are required for analyzing them

Equitable Remedies

One of the fundamental aspects of equity, as already mentioned, was that it introduced new solutions to complement the injury remedy in common law. ‘

Such relief, though, is voluntary, so even if the complainant wins the case, the judge does not have to award them. This is the reimbursement to negligence that will be given to a victorious party as of default in relation to the common law. 

Only where the court agrees it is reasonable in all cases will a rational remedy be given. If a group refuses a reasonable solution, this is called disrespect for the ruling, and the judge can either punish the party or even submit it to jail. The most relevant egalitarian solutions are the ones.

1. Injunctions                                                                                                               

The injunction is an order of doing something or not to do something to one of the parties involved in the case. Where the court orders one of the parties to do something that is called a compulsory injunction, where the order refrains from doing something that is called a prohibitory injunction. 

Injunctions are used even in all kinds of situations; in Kennaway v. Thompson (1980), for example, the court issued an injunction regulating the periods that motorboats could be run on a lake.

An injunction was given in Warner Brothers v Nelson (1937) requiring actress Bette Davis not to be a part of a film with another film company as that would have been a violation of her deal with Warner Brothers. All penalties and an order may be given to a plaintiff.

The penalties will be as redress for past issues, such as the disturbance and annoyance of the race vessels in Kennaway v. Thompson, as well as an order to prohibit (or limit) future events.

There may also be an order to protect the rights of one person when waiting for the appeal to be tried. This is considered an order on an interlocutory basis. Since the trial was not heard, the courts provided strict guidelines on when to issue an interlocutory injunction. 

Essentially, such an injunction will only be issued if it is believed that one side will suffer irreparable harm at the end of the case. It can also be granted if they suffer harm during the time the plaintiffs have to wait for the appeal to be decided and could not be remedied by the grant of damages.

2. Specific Performance

This is an order to carry out a contract as negotiated. It is only provided under exceptional circumstances where the court believes that the common law remedies for negligence could not sufficiently reimburse the complainant. 

In a land purchase deal. Personal conduct shall never be granted to require someone to provide personal services such as performing at a concert, nor shall it be granted for breach of contract where one of the parties is a minor.

3. Rescission

For contract instances, this is another solution that seeks to restore the parties to their pre-contractual status as far as practicable. Therefore, if a deal concerning the purchase of goods is rescinded, the customer would have to refund the product to the vendor. The vendor seller would have to return the purchase price.

4. Rectification

To comply with this, the court must rule that: where an error has inadvertently been made in a document so that it is not a true version of what the parties decided, the document should be changed to reflect the purpose of the parties.

Recent Remedies

The court must rule that, where an error has inadvertently been made in a document, that it is not a true version of what the parties actually decided, the document should be changed to reflect the purpose of the parties.

The consequence of the order is that those properties must be frozen by third parties (such as banks) that have assets owned by the group under their possession so that they cannot be withdrawn. The discovery warrant requires the complainant to inspect the property of the prosecution and seize all records or other evidence that may aid the applicant in arguing his argument.

The Relevance of Equity Today

Equitable privileges, preferences, and reimbursement are still important in today's rule. Concepts such as mortgages and trusts are based on the idea that one individual holds the legitimate interest in land but must use that property for another's gain. It is said that this other person has a fair interest in the property. 

Without mortgages, it's hard to imagine life today–the vast majority of homeowners are buying their property with a mortgage.

Trusts are commonly used in defining problems such as pension funds, as well as in households where the property is invested in younger family members or between husband and wife.

New Concepts

Equity in the legislation can still create new ideas. This occurred in the 20th century on several occasions. Equitable or promissory estoppel was one creation.

Lord Denning proposed this in Central London Land Ltd v High Trees House Ltd (1947) for the first time (more commonly referred to as the case of High Trees). In that situation, for 99 years, a block of flats in South London was licensed to a corporation, and the business sold individual flats to tenants.

After World War II, as a consequence of the war, many people moved out of town, making it difficult to let the apartments. The principal owner decided that while the war lasted, the leasing company would only have to pay half the normal rate. The landlord again demanded the full rent after the war. Denning (a High Court judge at that time) ruled they were entitled to it, but he also found in his decision what the legal position would have been if the owner had tried to claim full rent during the battle. Strictly speaking, the initial 99-year lease deal would have allowed such an argument to be raised by the owner.

Judgment: Denning said the landlord would have been estopped from arguing, however. Since this case, the statute has acknowledged that in some cases, requiring one side to depend on the specific terms of the contract would be unreasonable (or unfair) if they had caused the other party to think they would not.

The 'deserted wife's equity' was another egalitarian idea established in the 20th century. This was the belief that the woman had an equal share in the marital home where a husband abandoned his wife and children, even though it was held entirely by the husband. It helped the wife to stay in the house while relying on the baby. In the Matrimonial Homes Act of 1967, this privilege for spouses was eventually put into an Act or Parliament.

This is the most important part for the analysis. You must know the standing and relevance of equity in the current English law. You must compare it with the prior use where equity must always prevail and the current law where act of parliament is superior.

Modern Use of Equitable Remedies

In a range of circumstances, equitable remedies are still relevant and used. There have already been two instances of using injunctions. 

In one, an injunction was used to limit the number of occasions motorboats might compete for the order to prevent too much noise and discomfort from the complainant suffering. The other was granted an injunction to prevent an actress from breaking her contract with a film company.

Currently, injunctions are often used in the English legal system. These can be required as a defense for the abusive person in domestic violence cases.

Such an order also bars the abusive spouse from reaching or even moving within a certain distance of the house where the other person resides. Injunctions are also used to discourage ground misuse or to avoid excessive vibration, smoke, or other disturbance. Under different situations, they are used in employment law. Of instance, a former employee may be prohibited from exposing trade secrets to anyone, or a trade union injunction may be issued to discourage illegal industrial action.

Modern Equitable Remedies

Although the idea that they are arbitrary also exists, the courts were willing to extend equal remedies. Two developments of the 20th century were instructions from Mareva and orders from Anton Piller. The Mareva injunction arose in the case of Mareva Compania Naviera SA v International Bulk Carriers SA (1975) and is used where there is a possibility that one of the plaintiffs' properties will be withdrawn from the United Kingdom before the case is brought to court.

This requires the courts to require that any funds under its possession must be frozen from third parties, such as banks. This is vital as it ensures the money will be available at the end of the trial to cover the penalties or expenses imposed by the judge. 

The Anton Piller injunction was first used in Anton Piller KG v Manufacturing Processes Ltd (1976), which required the defendant to enable the complainant to inspect his property and delete any evidence or documentation that might be relevant to the case.

The purpose behind it is to keep the defendant from destroying any items or records that might be used in the trial as testimony. Both of these equal solutions are introduced into the laws of civil court trials. The Mareva warrant is now classified as a freezing request and the search order by Anton Piller. From all this, it can be seen that in the modern legal framework, equality still has a role to play and that it can also create new ideas and solutions that suit the fairness of specific cases.

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