The Blip Blop Blog (Team Entity)

2) Equity follows the law i.e. it works to mitigate and tamper the harshness of the law. Equity does not overrule common law judgments or decisions but rather acts in personam i.e. its decisions effect only those who are party to it and does not affect others. In Re Diplock (1948) for example, the rightful beneficiary was entitled to trace monies that were wrongfully paid to a charity. Despite the fact that the transfer was legal, the beneficiary had an equitable right to it and therefore the beneficiary was allowed to trace (tracing allows the rightful owner to recover property and monies that were wrongly given to another or transferred without the consent of the rightful owner) the monies. Copyright © 2019 by Dyarne Jessica Ward

Following the passing of the Judicature Acts of 1873 – 1875, cases were decided by a single court system, on the basis that in case of conflict between common law and equity, equity will prevail. Since the inception of equity, as an adjudicating mechanism, a series of rules had evolved to facilitate its workings and to help others, especially litigants, understand its more salient features. These rules became known as equitable maxims and below are some of the more commonly known equitable maxims: - 1) Equity varies with the length of the Lord Chancellor's foot. This maxim simply means that equity does not operate on a system of binding precedent and a court of equity does not decide like cases in like manner but rather decides each case on its facts, keeping in mind or taking into account what is fair and just. Therefore, there is always the possibility with regards to equitable decisions, that even if the facts were the same in two cases, the decision might be differe

Despite the merits of having a dual court system, i.e. an additional or a higher court, where a genuinely aggrieved litigant could have his or her concerns addressed, it nonetheless did create a certain amount of confusion. The law as far as possible has to be transparent and every citizen, where possible, should be aware of his or her rights, and should a matter go to trial, the litigants should be able to some degree predict the outcome. To remedy the shortcomings of the dual system and to create some form of uniformity, parliament passed the Judicature Acts of 1873 and 1875. Under the 1873 Act the old higher courts were abolished and a new Supreme Court of Judicature was created consisting of the High Court of Justice and the Court of Appeal. The High Court was divided into five specialist divisional courts based on the old central courts (King’s Bench, Common Pleas, Exchequer, and Chancery), with the addition of the new Probate, Divorce and Admiralty division. Equity wa

Equity, if anything, seeks to achieve a balanced legal system by remedying the defects of the common law and this aspect of equity is defined by the German philosopher Hegel (Georg Wilhelm Friedrich Hegel, 1770 – 1831). “Equity involves a departure from formal rights owing to moral or other considerations and is concerned primarily with the content of the lawsuit. A court of equity, however, comes to mean a court which decides in a single case without insisting on the formalities if a legal process or, in particular, on the objective evidence which the letter of the law may require. Further, it decides on the merits of the single case as a unique one, not with a view to disposing of it in such a way as to create a binding legal precedent for the future.” In short equity decides each case on its merits, taking into account what is fair and just, and does not create and nor does it intent to create, a binding precedent. Copyright © 2019 by Dyarne Jessica Ward

To restrict oneself to common law or statutes, without taking into account the evolution of the English Legal System, and without having a clear and concise view of English history, would be to adopt an overly simplistic approach. English Law as it is today is not a result of an act or a series of acts but rather a culmination of numerous events that started well before 1066 and whatever the situation may be today, we have to understand its roots and its origins in order for us to acquire a comprehensive understanding, not only of the English Legal System, but also of the spirit of the law, i.e. the true motivation behind laws (theoretically speaking) which is the need to do what is good and right and the notion that right must always prevail over wrong or to take it a step further, good must always prevail over evil which goes back to the tenets of the Christian Church. The Law obviously has to change with time to meet the needs of the people but the fundamentals are alway

Those that were disappointed or those that were denied justice however were not without recourse and they began petitioning the king who is the highest authority in the kingdom appealing to his sense of justice and fair-play. Equity itself is synonymous to justice and fair-play and the word simply means fair and impartial. Initially the king dealt with the petitions himself but as the number of petitions increased the task was delegated to the Chancellor who became known as the keeper of the king’s conscious. When a litigant seeks an equitable remedy, he or she is in fact appealing to the conscious of the king. The Chancellor, on behalf of the king, decided the cases on what was morally right, and it would be fair to say that equity blurs the lines or the distinction between what is morally right and legally right and while it is common enough to hear people say that what is morally wrong is not legally wrong, English Law is not so cut and dry especially in cases and instances

With the advent and subsequent stifling of the writ system, defects in the common law, the principle that like cases should be treated in like manner, became more apparent. For starters judges and juries adhered too strictly to precedent and decided in line with past cases, without taking into account other facts and factors regardless of how compelling they were. Furthermore, the process of jury vetting at the time did not exist or was not as comprehensive as it is today, and members of the jury were at times prone to be corrupt and were not averse to intimidating the parties at a trial. In terms of remedies the only remedy that was available was damages and remedies like specific performance and injunctions (equitable remedies) were not available. In addition to that the process was overly lengthy with too much attention being paid to what was written and what was not, and the common law courts did not recognize trusts. Copyright © 2019 by Dyarne Jessica Ward

In 1285 the Statute of Westminster II (De Donis Conditionalibus) authorized clerks to issue writs but it was with regards to Writs of Formendon which restricted the sale of land that is inherited and protects the land from being sold, in the form of a trust, and causes it to pass automatically to a heir predetermined by a deed. While it did complicated matters somewhat (a large portion of the cases that were dealt with at the time were with regards to land) it did protect the rights and the interests of the predetermined heir, especially in cases and instances where the intended heir was a minor, and we also have to look at it in light of the fact that many of the feudal landowners were involved in the crusades (1021 – 1291) at the time, and often left behind young heirs. Copyright © 2019 by Dyarne Jessica Ward

Because of the drawbacks of the writ system, in 1258, the Provisions of Oxford were issued, which expressly forbade the issue of new writs without the permission or consent of the King in Council. The start of the Provisions of Oxford 1258 reads as follows: - It has been provided that from each county there shall be elected four discreet and lawful knights who, on every day that the county is held [i.e. the county court], shall assemble to hear all complaints touching any wrongs and injuries inflicted on any persons by sheriffs, bailiffs, or any other men, and to make the attachments that pertain to the said complaints until the first arrival of the chief justiciar in those parts: so that they shall take from the plaintiff adequate pledges for his prosecution, and from the defendant for his coming and standing trial before the said justiciar on his first arrival; and that the four knights aforesaid shall have all the said complaints enrolled, together with their attachments

Over time the judges began to develop a writ system i.e. they issued a written order compelling an individual to take specific action and only allowed individuals remedy under certain circumstances or certain instances. The writ system however was too simplistic and there were no remedies that were available if the offence did not comply with what constitutes an offence as stipulated by a writ and therefore a plaintiff though he may have been genuinely aggrieved, may not be able to obtain a remedy because the offence was not committed in the manner that was stipulated or laid out in the writ. Copyright © 2019 by Dyarne Jessica Ward

During the reign of Richard I or Richard the Lionhearted, in 1195, the office of “Knights of Peace” was created through a Royal Proclamation. King Richard spent most of his life in the crusades and was probably its most notable commander especially in the Third Crusade. It would be to some degree or extent fair to say that most of King Richard’s decisions were based on the canons of the Christian Church. The office of the “Knights of Peace” was created to assist the sheriffs, who were tasked by the king to keep the peace in their respective shires or counties on behalf of the king and these sheriffs had some judicial authority and were give the duty of not only enforcing the law but were also empowered to deal with minor crimes. Copyright © 2019 by Dyarne Jessica Ward

Initially the courts carried out the functions of all three limbs of government (the legislative, executive and the judiciary), (this is prior to the birth Montesquieu (1689 – 1755) and the doctrine of separation of powers). The courts however adhered to and continue to adhere to the doctrine of Stare Decisis, a Roman legacy, and the doctrine simply states that cases with identical or similar facts are to be approached in an identical or similar manner (common law is founded on the doctrine of Stare Decisis). Things remained that way until the reign of Henry I (1068 – 1135) after which the function of the courts were divided among three separate bodies. The court of Exchequer dealt with the collection of revenues, the court of common pleas dealt with common disputes or disputes among individuals and the judges who belonged to the King’s Council or the assize judges continued to travel through the country. Copyright © 2019 by Dyarne Jessica Ward

Following the Norman conquest of England local laws (which later became known as common law), these were not laws that were created but rather preexisting laws that were incorporated, laws that existed during the Roman occupation of the British Isles, most of which were ecclesiastical based or founded on church law (canon law), historically English Law or English Common Law had the principles of the Christian Church as its cornerstone, were enforced by the King’s Council and that led to the emergence of the Royal Courts. The Royal Courts began to take over the function of the local courts, or the preexisting adjudicating mechanism. It was a process that occurred over a period of time and a practice of sending judges around to hold assizes or sittings locally, to hear the cases and to ensure that all cases were decided in accordance with the law, was created. Trials per se were adversarial and both parties were given the opportunity to prove their case or disprove the other

English law as it is applied today starts with the conquest of England by William I – Duke of Normandy, a region in France, in 1066. William I was of Viking descent. He became Duke of Normandy in 1035, and after a bitter struggle to establish his authority which culminated is his success; he managed to establish his authority by 1060, he launched his campaign to secure the British Isles and was successful six years later (1066) and those that followed him from Normandy became known as the Normans. The first inhabitants of the British Isles were the Anglo-Saxons who were a Germanic tribe that began migrating to the east and south of England from Denmark after the Romans began withdrawing from England in 5 AD. The first King of England was Egbert (802) (Anglo-Saxon). Though the Norman-Anglo Saxon distinction has little or no significance in modern day England and most historians choose to discard it, England is far too complex for that, it is something that is worth knowing.

The Theft Act (1968) covers both tangible i.e. physical property and intangible property i.e. intellectual property. Property as defined by section 4 (1) of the Theft Act 1968 is as follows: - “Property” includes money and all other property, real or personal, including things in action and other intangible property. Copyright © 2019 by Dyarne Jessica Ward

Appropriation of goods that are given to charity may also be considered as theft depending on where the goods were taken from. In Ricketts v Basildon Magistrates (2011), the defendant took some bags filled with items that were given to Oxfam and the BHF (the British Heart Foundation) intending to sell them at a car sale. The defendant was charged under the Theft Act 1968 and he was committed by the magistrates to the crown court. It was held that taking items given to charity may be considered as theft depending on where they were taken from. The items that were given to Oxfam were taken from Oxfam bins which is the property of Oxfam and therefore the taking of those items constituted theft. The items given to the BHF were placed on their doorstep and therefore did not constitute theft. It the instance of the latter it could be argued that the items were abandoned. Copyright © 2019 by Dyarne Jessica Ward

Appropriation as far as section 3 (1) of the Theft Act 1968 is concerned requires direct physical action as opposed to remote triggering. In R v Briggs (2004) the appellant convinced her uncle and aunty to move closer to her so that she could take better care of them. Her aunty and uncle accordingly sold the house and the appellant made an arrangement with the conveyancers to have the house purchased in her name and have the proceeds of the sale given to her aunty and uncle, contrary to their wishes. The aunty and uncle never intended for their niece to purchase their property. The defendant was charged and convicted of theft. The defendant appealed. The appeal was allowed and the conviction for theft was substituted with a conviction for deception. Appropriation as far as section 3(1) of the Theft Act 1968 is concerned is more in line with a direct physical act as opposed to remote triggering, which was the case in this instance and therefore a conviction for deception wou

With reference to section 6 (1) of the Theft Act (1968) the act of appropriating the property of another with the intention of permanently depriving the other of what is rightfully theirs will be regarded as theft. In R v Lavender (1994) the defendant removed some doors from council flats that were due for demolition and fixed them on his girlfriend’s flat. The defendant was charged and convicted. The defendant had the intention of permanently depriving another of what was rightfully theirs and therefore was guilty of theft. Copyright © 2019 by Dyarne Jessica Ward

In DPP v Gomez (1993) the defendant colluded with two others who had stolen a couple of cheques to purchase goods in the shop that he worked in. The defendant persuaded the manager of the shop to accept the cheques as payment for the goods the other two had purchased. The cheques were dishonored and the defendant was charged. The defendant argued that the manager had consented to accepting the cheques as payment. The defendant appealed under section 3 (2) of the Theft Act 1968 which reads as follows: - “Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property” The House of Lords upheld the conviction and decided that appropriation could occur even when there is consent especially when there is a clear intention to defraud the rightful

With exception of section 2 (1) of the Theft Act 1968 (exceptions to dishonesty), whether a person’s conduct or actions are dishonest or otherwise is entirely dependent on what he believed at the time i.e. subjective. In R v Holden (1991) the appellant worked for Kwikfit. He took some used tyres and was charged with theft and convicted. The appellant argued that he was only doing what other employees did and overlooked the fact that his employment contract expressly forbade him or prohibited him from taking any used items. The conviction was quashed on appeal and it was decided that what amounts to dishonesty or otherwise is dependent on what the defendant believed at the time he committed the act. Copyright © 2019 by Dyarne Jessica Ward