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1.3 A Brief History of Equity 7 Law and Chancery courts, with each considering that its approach should prevail over the other. This struggle came to a head in the Earl of Oxford’s case , 17 in which Equity prevailed. Lord Chancellor Ellesmere in that case recognized that Equity’s function was ‘to soften and mollify the extremity of the law’. Later, Lord Chancellor Cowper summarized the relationship between Common Law and Equity well when he said: ‘Equity is no part of the law, but a moral virtue which qualifies, moderates and reforms the rigour, hardness and edge of the law.’ 18 From the seventeenth century onwards, Equity as a body of law became more system atic. Various Lord Chancellors made their mark in the Court of Chancery in rationalizing the law. For example, in the eighteenth century Lord Nottingham developed the law of perpetuities, which still applies today, 19 and early in the nineteenth century Lord Eldon consolidated many equitable rules to make Equity much more principled. 20 Even though Equity’s function in moderating the rigours of the Common Law remained clear, the legal system that emerged in the nineteenth century was far from ideal. The dual court structure, resulting from having distinct Common Law and Chancery courts in which different bodies of law were applied, caused great inconvenience and injustice: it meant that the claimant had to choose the right court in which to pursue the claim. If the wrong court was chosen, the claimant would then have to start all over again in the other court. This resulted in lengthy delays and very high costs in pursuing litigation. This was reflected by Charles Dickens in the mid-nineteenth century, in his novel Bleak House , which starts with the following description of Equity, as practised in the courts of the time: On such an afternoon, some score of members of the High Court of Chancery bar ought to be—as here they are—mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words, and making a pretence of equity with serious faces, as players might. Everyone is yawning ‘for no crumb of amusement ever falls from JARNDYCE AND JARNDYCE (the cause in hand), which was squeezed dry years upon years ago’. That case involved a disputed inheritance and, as Dickens writes, ‘this scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means’. 21 By the end of the novel, judgment is given, but the legal costs that have been incurred are so great that they consume most of the estate that was disputed in the first place. The complexity of litigation in the nineteenth century was to some extent resolved by the enactment of the Judicature Acts of 1873 and 1875. The effect of these statutes was to abolish the Common Law and Chancery courts and replace them with a single High Court, which was divided into what is now known as the Chancery Division, the Queen’s Bench Division, and the Family Division. Each Division is responsible for its own area of the law, with the Chancery Division tending to deal with the Equity business, the Queen’s Bench Division dealing with contract and tort, and the Family Division dealing with mat rimonial and other family disputes. But, because the Divisions together form a unified High Court, it should not matter to the resolution of the dispute in which Division the claimant chooses to sue. The Divisions are a matter of administrative convenience and do not have any jurisdictional significance. This was made absolutely clear by the Judicature © Oxford University Press

17 (1615) 1 Ch Rep 1. See Ibbetson, ‘The Earl of Oxford’s Case’ in Landmark Cases in Equity , ed. Mitchell and Mitchell (Oxford: Hart, 2012), ch. 1. 18 Lord Dudley v Lady Dudley (1705) Prec Ch 241, 244. 19 See Section 4.6, p. 120. 20 Gee v Pritchard (1818) 2 Swans 402, 414. 21 Dickens, Bleak House (Oxford Illustrated Dickens) (Oxford: Oxford University Press, 1988), 2, 3, 4.

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