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1.6 Should Equity Be Assimilated Into the Common Law? 25 1.6 SHOULD EQUITY BE ASSIMILATED INTO THE COMMON LAW? This chapter has shown that there is a fundamental distinction in the law between the Common Law and Equity. Although the administration of Common Law and Equity have been assimilated so that Equity can be applied in any court, Common Law and Equity have not been substantively assimilated. In other words, they have not been fused. One of the great controversies concerning the function of Equity today is whether the separate existence of the Common Law and Equity can still be justified or whether the two should be fused. 1.6.1 Are Equity and Common Law already assimilated? Before considering whether the Common Law and Equity should be assimilated, the prior question which must be considered is whether they are already assimilated. The answer is clearly ‘no’. This will be shown throughout this book, but for now two illustrations of the significant differences between Common Law and Equity will make the point: (1) It remains a fundamental principle that equitable proprietary rights and legal pro prietary rights are distinct. The notion of the trust depends on a separation of these rights. Since the Common Law does not recognize equitable rights in property, it follows that it does not recognize the trust. (2) The characteristics of proprietary rights are dependent on whether they are classi fied as legal or equitable. For example, if the defendant steals a car that belongs to me at Common Law, then the usual remedy that will be available to me is a pecuniary remedy to compensate me for the loss suffered: I will not usually be able to recover the car from the defendant. Where, however, I have an equitable interest in the car, for example because it is held on trust for me, and that car is stolen, I will be able to assert my equitable propri etary right and can recover the car itself. Another difference between legal and equitable property rights relates to the ability to claim money that has been stolen from the claim ant. If the claimant has a legal interest in money and that money is paid into an active bank account, the Common Law is unable to identify the money in the mixture and so any proprietary claim to that money will fail. 130 Where, however, the claimant has an eq uitable interest in the money, Equity is able to identify value in a mixture and the propri etary claim to the money will not be defeated by the mixing. 1.6.2 Are Common Law and Equity being assimilated? Although Common Law and Equity remain distinct, there is growing evidence that they are becoming assimilated. This is illustrated by three particular examples: (1) When a defendant is liable to pay damages to the claimant, it has long been rec ognized that the defendant will also have to pay interest to the claimant for the defen dant’s use of the money. Section 35A of the Senior Courts Act 1981 provides that simple interest should be available—that is, interest awarded on the sum due to the claimant. There is, however, an equitable jurisdiction to award compound interest, in which case interest is awarded on both the capital sum and on the interest that has already accrued. © Oxford University Press

130 See Section 19.3.2(iii), p. 617.

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