Equity Reform

Criticisms of Courts of Equity

In the first half of 19th century, the courts of Chancery  were criticised for inordinate delays and inefficiency.  Their procedure was extremely slow in particular that association with the Lord Chancellor Eldon.  Equity had itself become procedural and rigid.

Equity  had been  criticised for a mass of incompatible and irreconcilable decisions.  The criticism was made that equity varied severely from Chancellor to Chancellor as his conscience differ with the measure of his foot.  Reaction against the above phenomenon was the determination of some Chancellors to enhance the role of precedent.  Lord Eldon  did much to establish principles of precedent  in equity

A feature of the 19th century equity was great delays in judgments appearing.  A famous caricature of equity in Bleak House, by Charles Dickens exposed the protracted, inefficient and expensive nature of equity procedures.

Technical Complexity

By the early 19^th century pleadings had become technical and anomalous.  The masters in chancery exercised anachronistic procedures in taking evidence.  Pleadings were long, detailed and incomprehensible.

Evidence was taken by commission out of court  A commissioner presented witnesses with  interrogatories in the absence of the party.  Examination followed on previously prepared questions and not in the basis of matters arising in the examination.

No summary procedure existed.  A relatively minor procedure which would be heard summarily in modern times might be the subject of a full suit in chancery.

Understaffing

The chancery  was severely understaffed.  Until 1813. it comprised Chancellor and the Master of the Roll.  The Chancellor also had political functions.  The Master of the Roll’s decisions were subject to appeal to the Chancellor. The appointment of a vice-Chancellor in 1813 eased the position slightly.

There was a very small number of judges in chancery.  Many were paid by fees and did not receive a fixed salary. The effect of this together with increasing public impatience and anger lead to reform of the chancelry  reports inevitable.

Initial Reform

Following the victory of the Whigs in 1830  significant reforms were undertaken. The  rules and constitution of the courts of chancery were changed so that they fitted more appropriately the requirements of litigants.  Judicial staff were increased.  There was more reflective control of administrative staff.  The fusion of law and equity was apprehended.

An 1830 act obliged masters in  chancery to ensure that persons committed to prison did not remain there for extended periods.  The Bankruptcy Act 1831 transferred bankruptcy jurisdiction from the chancery courts to a new bankruptcy court .

The Chancery Act 1833 provides abolition of certain officers and appointment of new registrars   master of reports and entries was appointed.  Officers and clerks were not to take gratuities  and were to hold office during good behaviour.  The Lord Chancellor was given power to make rules for practice and procedure in the court.

Land law was reformed by a number of use of legislation in 1833.  This followed from the reports of the Real Property Commission.  The Fines and Recoveries Act, the Real Property Limitation Act and the Inheritance Acts all passed in 1833 and simplified the rules of conveyancing.

The Chancery Act 1841 transferred the equitable jurisdiction of the court to exchequer, to the Courts of Chancery.  Further vice Chancellors  were appointed so that there were four full time chancery judges and a Chancellor.  This enabled the Chancellor to deal with appeal matter.

The Chancery Act 1842 transferred bills of costs to newly created taxing master.

Procedures Rationalised

The Courts of Chancery Act 1851 gave power to make a declaratory judgement without relief.  The Court of Chancery Act 1851 provided for a Court of Appeal in Chancery.  This heard appeals from the Vice Chancellor,  Masters of The Rolls and bankruptcy.  It comprise the Chancellor and two lord justices in Chancery.

The Chancellor could sit alone or with justices.  The Lord Justices could sit without the Chancellor.  The Master of the Rolls or vice Chancellor could be requested by the Chancellor to assist.  There was a further right of appeal to the House of Lords.

The Court of Chancery Procedure Act amended practice and procedure in the High Court in  chancery.  The plaintiff’s Bill was the general initiating document in lieu of the writ of  subpoena.  It contained the facts pm  which the plaintiff’s case was based on, it had to set out the case concisely in paragraphs. A request for relief  was required at the end. The defendant’s answer include his assertion of the facts of the case.

Evidence could be given orally if either party requested.  Evidence would  be given before an examiner out of court and the records are made available to the judge.  A person could be cross-examined on his affidavit before the examiner. The courts of Chancery r was given prior to decide matters of law as arose in the course of proceedings.

The Common Law Procedure Act 1854 began to align the procedures in common law and equity.  The common law courts were given the powers to grant , certain equitable type relief. The Act  provided a further move towards the fusion of law and equity.  The defendant in a common law case was allowed to use any equitable offence which might have been available on equitable principle. This was available at the discretion of the court.

Common law courts were empowered to grant orders of discovery and  administer interrogatories.  The could issue prohibitor injunctions.

The Chancery Amendment Act 1858 (Lord Cairn’s Act) empowered the chancery courts to grant damages in addition to or in lieu of specific performance or injunction.  The jurisdiction of chancery was significantly extended.

Fusion of  Courts of Law and Equity

The Judicature Acts 1873 and 1875 and the Judicature (Ireland) Act 1877 provided for the fusion of the courts of law and courts of equity.  The earlier Acts had moved equity and law closer together.  A number of reports for published in late 1860s and early 1870s on the matter.  The act was based largely on the Reports of the Commission.

The act constituted the Supreme Court of Judicature the  purpose of better administration of justice. This court incorporated all existing courts. The acts provided for the administration of the rules of law and equity concurrently. New procedures applied in the supreme court.

The Supreme Court of Judicature Act unified into a single Supreme Court of Judicature, the Queen’s Bench, Common Pleas, Exchequer, Chancery, Probate, Divorce, matrimonial causes and Admiralty and the Bankruptcy Court.  The Supreme Court comprise a High Court of Justice and a Court of Appeal.

The High Court of Justice exercises the former jurisdictions of the various courts above.  It consisted of the Lord Chancellor, Master of the Rolls, ds, vice Chancellors, Chief Justice of the Queen’s Bench, Common Pleas, judges of the common law courts, courts of probate, divorce, matrimonial cause and admiralty.

Reorganised Courts

The Supreme Court of Judicature had five divisions, Chancery, Common Pleas, Queen’s Bench, Exchequer, Probate, Divorce and Admiralty.  The number of divisions  could be increased by Order in Council.

The Courts of Appeal incorporated d the Lord Chancellor, Courts of Appeal in chancery, the Exchequer Chamber, Privy Council in lunacy . It  comprised Lord of Justices of Appeal.  High Court judges could be requested to sit.  No injunction could be issued to restrain business in another court

The Chancery Division was assigned areas of work which ware traditionally dealt with by chancery courts including administration of estates, dissolution of  partnership, redemption of mortgages, sale of property, wardship, partition et cetera.

Fusion of Law & Equity

Where an action claimed relief in equity,  the defendant might raise an equitable or legal defence. The key specific position in respect of a number of principles where common law and equity collided was set out.

It was provided generally in all matters not  specifically mentioned, that where there  was a conflict between the rules of equity and the rules of common law, the rules of equity should  prevail.

The judges of the Supreme Court were given power to create rules.  A new set of rules in  were prepared and published.