Credits go to original writer. For studying purposes only.

1. Bangor University
School of Law
‘In 1873, the Judicature Act provided that the courts of common law and those of equity should
be merged so that any single court could rule on any question, no matter whether it related to
principles of equity or to rules of common law. However, the Act only removed the physical
distinction between the courts – the intellectual distinction remains even today.
Critically examine the fusion debate.’
Ryan Jarvis
500527245
1st
March 2019
Assignment submitted in partial fulfilment of the requirements for:
Bachelor of Laws with Honours (LLB)

2. Statement of Originality
Assignment submitted in partial fulfilment of the requirements for the award of Bachelor of Laws with
Honours (LLB).
Title: In 1873 the Judicature Act provided that the courts of common law and those of equity should
be merged so that any single court could rule on any question, no matter whether it related to
principles of equity or to rules of common law. However, the Act only removed the physical
distinction between the courts – the intellectual distinction remains even today. Critically
examine the fusion debate.
Submitted by: Ryan Jarvis
Declaration: I confirm that, except where indicated through the proper use of citations and references,
this is my own original work.
Signed: R Jarvis
Date: 1st
March 2019
Word Count: 2499

3. The nature and jurisdiction of Equity has aroused a controversy among academics, legal scholars,
Common Law and equity lawyers as far back as the fifteenth century. This assignment will critically
examine the fusion debate by making reference to the nature of equity, how equity has developed both
historically and in more recent decades, then going on to critically analyse the Judicature Acts of 18731
and 752
, how they have caused what is commonly referred to as the ‘fusion fallacy’ that being the fusion
of the Common Law and equity, albeit this is refuted by some hence the debate. In conclusion, the most
common maxims otherwise referred to as the characteristics or principles of equity will be considered as
discussed in Francis, R’s ‘Maxims of equity, collected from and proved by cases, out of the books of
the best authority in the High Court of Chancery’3
and briefly contrasting the available remedies to
the equity and Common Law courts. Throughout this assignment reference will be made to case law
where appropriate and relevant.
Equity, while commonly referred to and thought of as ‘fairness’ and/or ‘justice’ it does not mean ‘justice’
in the broader sense as we often interpret it in today’s literal meaning. Traditionally, equity as defined by
Evershed, L “restrains injustice by stopping the unconscionable conduct of a particular purpose”4
.
The terms ‘conscience’ and ‘unconscionability’ have a long-standing history in terms of equity in that the
Chancellor was deemed the keeper of the King’s conscience. As we can see in the recent case of
Pennington v Waine [2002]5
a case which considered what is needed to make a binding transfer on an
individual where another or corporate body needs to complete such a transfer where the term
‘unconscionability’ was used by Arden LJ in passing judgement whereby he stated “a gift can be
deemed to be complete if it would have been ‘unconscionable’ for the donor to change their mind
at that point”. However, Watt, G in his book Equity Stirring: The Story of Justice Beyond Law’6
discusses terms such as hope, something to aspire to and being something desirable but it many ways
expressing the point that Equity has many meanings in many different terms depending upon the context
it is being used. This would fit in well with the idea that members of the judiciary make judgments based
1
Judicature Act 1873
2
Judicature Act 1875
3
Richard Francis., Maxims of Equity, Collected from And Proved by Cases, Out of The Books of The Best Authority in The
High Court of Chancery: To Which Is Added, The Case of The Earl of Coventry, Concerning the Defective Execution of
Powers. (H Lintot 1739).
4
Lord Evershed, ‘Reflections on the fusion of Law and Equity after seventy-five years’ [1954] LQR 70, 326
5
Pennington v Waine [2002] EWCA Civ 227
6
Gary Watt, Equity Stirring: The Story of Justice Beyond Law (Hart Publishing 2009).

4. on each individual case and set of circumstances – that being no case is ever the same which could be seen
as a ‘fair’ and ‘just’ approach to ensuring equity. However, in conclusion, Watt concurs that
‘unconscionability’ could be seen as just a rationale behind equitable intervention.
The development of equity started to take place during the thirteenth century in response to the people’s
dissatisfaction of the Common Law courts in which they felt they were unable to obtain redress for their
grievances. It was often felt that the Common Law was ‘harsh’ or too ‘rigid’ in its approach to dealing
with sometimes very sensitive and complex matters. It would appear that as the law of equity developed,
a new-found Court of Chancery in Westminster was formed in which the Chancellor began to make
decisions on cases on his own authority on behalf of the King. Over the years, equity developed a good
amount of case law and was seen as a court which used remedies to prevent injustice. This is still very
much the case today for example where the courts use ‘freezing’ and ‘search’ orders.
During the early days of the Common Law development the King and his council would travel across the
island resolving disputes as they occurred. The Kings Chancellor (being a member of the clergy) as
examined earlier was deemed suited and fit for the role of the Kings ‘conscience’ and would often advise
the King and his council. In order to bring a claim at the Common Law level one would have needed a
writ which could be obtained by applying to the court. If one had no writ then you could not bring any
claim. If dissatisfied with the decision of a case one could petition to the King for their case to be heard in
the Royal Courts, then eventually in 1474 being the Court of Chancery. As the Court of Chancery
developed, the characteristics of equity started to form in that equitable remedies were seen as
discretionary and acting in personam7
. While it would appear that some members of the judiciary portray
that equity is simply just complete discretion on their part it is much more than that as shown in the case
of Tinsley v Milligan [1993]8
where the Court of Appeal and the House of Lords applied one of the
maxims differently, albeit still making reference to the fact they had considered the maxims of equity that
being a sort of ‘procedural rules’ of equity.
7
John Gray, Lawyers' Latin (2nd edn, Robert Hale 2006).
8
Tinsley v Milligan [1993] UKHL.

5. In the Earl of Oxford’s Case (1615)9
the King was referred the judgements of both courts in the same
case which were conflicting. This case finally brought the issue of incompatibility to rest whereby the
King’s decision defined the legal principle of ‘where there is a conflict between equity and the common
law, then equity shall prevail’ i.e. equity sits on top of the law. It’s important to note that if an
alternative decision had been made then equity would have ultimately become defunct and not have the
powers in which it needed to soften the blow of the common law. This case also further corroborated
that one of the underlying questions a judge must consider is one of ‘conscious’ in cases of equity.
In 1873 the Judicature Act10
was enacted which is a key piece of legislation amongst the legal community
in that it made the Common Law courts and Court of Chancery defunct by replacing them with a new
Supreme Court which consisted of the High Court and Court of Appeal. What’s more interesting, is that
S.25 (11) of the Act provided some certainty in that it clarified which court would prevail in situations of
incompatibility, again reaffirming the view of the King in 1615 that if the Common Law and equity
conflict then equity shall prevail.
By the enactment of the Judicature Acts 187311
and 187512
it created this question of fusion whereby many
academics, legal scholars and other interested parties disagreed on what is commonly referred to as the
‘fusion fallacy’. For example, in her book Equity (2006)13
Worthington, S argues that there should be
an end to the two different systems of Common Law and Equity whereas Browne, D in his book
Ashburner’s Principles of Equity (1933)14
as ‘comparing the law and equity to separate streams, while
acknowledging they run side by side “do not mingle their waters”. However, there is a clear difference in
opinion in that Diplock, L in the case of United Scientific Holdings v Burnley Borough Council
[1978]15
considered the law of equity and the common law as fused. Another conflicting but interesting
9
The Earl of Oxford's Case in Chancery 21 ER 485
10
Judicature Act 1873
11
Ibid (10)
12
Judicature Act 1875
13
Sarah Worthington, Equity (Oxford University Press 2006).
14
Denis Browne, Ashburner’s Principles of Equity (2nd edn, Butterworth and Co 1933).
15
United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904

6. view is that of Burrows, J in the journal article ‘We do this at the common law but that in equity’16
where he argues in favour of further fusion between the Common Law and equity where he feels that
minor changes could produce this combined concept.
While both the Common Law and equity have case law which sets precedents, equity has also developed
maxims which must be satisfied ultimately ensuring moral fairness. In the case of Boardman v Phillips
[1967]17
Upjohn, J recognised that ‘the rules of equity have to be applied to such a great diversity
of circumstances that they can be stated only in the most general terms and applied with
particular attention to the specific circumstances of each case’. It is respectfully suggested that this
further enhances the opinion of some academics that equity is flexible in its approach and can change with
the times, views, and values of those it seeks to serve. Walker, L in the recent case of Futter and
another, v HMRC; Pitt and another v HMRC [2013] 18
defined a maxim of equity as ‘not a specific
rule or principle of law. It is a summary statement of a broad theme which underlies equitable
concepts and principles’
The Maxim ‘Equity acts in personam’ is around this idea that in the formative years of Equity it was
intended to deal with the issues of personal interests rather than proprietary rights. Its intention is to
determine whether something done is ‘conscionable’ which is a clear difference in approach from that of
the Common Law. Each and every case is important in that it concerns the lives of often some of society’s
most vulnerable and complex.
As succinctly put in Gray, J’s book Lawyers’ Latin19
(Aequitas sequitur legem) “the Court of
Chancery never maintained a right to ignore the Common Law as administered in the Courts of
Common Pleas, Exchequer and King’s/Queen’s Bench” it is simply that the equitable courts are there
to ‘supplement the harshness’ of the Common Law this again reaffirms the maxim ‘equity follows the
law’.
16
Andrew Burrows, 'We Do This at Common Law but That in Equity' (2019) 22 O.J.L.S.
17
Boardman v Phillips [1967] 2 A.C. 46
18
Futter and another v HMRC; Pitt and another v HMRC [2013] UKSC 26
19
John Gray, Lawyers' Latin (2nd edn, Robert Hale 2006).

7. The case of Walsh v Lonsdale (1882)20
is a great example of how the maxim ‘Equity sees as done that
which ought to be done’ was applied where a landlord and tenant were in dispute over the rental
payment demanded. While it seemed, the parties had intended to form an agreement there was no valid
signed trust hence the tenant refusing to pay this demand for a year in advance of rental income which
was previously agreed to in that the Landlord could demand twelve months payment in advance at any
point. The tenant did however have a good history of maintaining his rental payments (approximately
seven years). The courts agreed that while there was no valid trust there was an equitable lease in that
while there had been a failure to comply with the formalities required, the landlord was entitled to
demand the rental payment as previously agreed that being the landlord had legal remedy of distress in
relation to the rent due.
If a claimant seeks recourse for the wrong committed by another but have committed a wrong themselves
in the cause of the issue at hand, then they will not be granted any equitable remedy. This was reference
in the case of D&C Builders Ltd v Rees [1966]21
whereby a relatively small building company completed
some work on a property in which the Rees owned. The builders company ended up in some form of
financial difficulty in which the Rees became aware. When the builders asked for the money for the work,
they completed they were told they could only have part of the payment and no more. Being in financial
difficulty the builders begrudgingly accepted this (being in a vulnerable situation and financial difficulty).
Upon consideration of the matter the builders decided to take the matter to court. The Rees attempted
to rely on the doctrine of equitable estoppel22
which failed whereby the infamous Denning, L was said
to have refused to apply such a doctrine as the Rees had clearly taken advantage in this case and therefore
did not come with clean hands. This further affirms the maxim ‘he who comes to equity must come with
clean hands.
It’s worthy to note that the equitable remedies available to the court are somewhat different to that of
the Common Law. In equity there are remedies such as rescission, injunction, specific performance
(enforcing someone to do something), rectification (document can be amended to reflect the true/real
20
Walsh v Lonsdale (1882) 21 Ch D 9
21
D&C Builders Ltd v Rees [1966] 2 Q.B. 617
22
'Estoppel'
<https://uk.practicallaw.thomsonreuters.com/Document/I47856AB1DDD611DFAE9091CBB51C1C78/View/FullText.ht
ml?originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29&comp=wluk> accessed
1 March 2019.

8. intentions of the parties) and are all available at the discretion of the court in addition to those available
at Common Law level. However, the court must consider the framework of principles referred to earlier
as the Maxims of Equity. These equitable remedies were designed due to the clear deficiencies in the
Common Law at the time which are often still relevant to this day.
Overall, it would appear there is a place for equity in the future in that it has been able to withstand and
adapt to differing and complex needs while still being able to uphold those traditional values of ensuring
fairness and that those passing judgement must therefore always be minded of their conscience. It can be
evidenced that the equity courts have been much influence in terms of law reforms, in more recent times
the notable Matrimonial Homes Act 196723
which entitled ghosted wives to be able to obtain equitable
interest within a property. The equity courts had already been conducting such decisions well before the
introduction of the Act which was seen as an ‘interim solution’ to a problematic area of law.
There is also the issue of the ‘fusion fallacy’ which has clearly not been agreed upon by many in the
academic and legal communities which requires clarification possibly in the form of a Law Commission
Report or Royal Commission which can reflect the views and knowledge of all interested parties in an
attempt to finally reach a conclusion as to the place of equity and it’s place for the future in our
everchanging and complex legal system. It is respectfully suggested that there was a possible missed
opportunity to address this issue when the Ministry of Justice announced and published their
consultation Fit for the Future: transforming the Court and Tribunal Estate24
which already
recognises the importance of change so the justice system can continue to lead and inspire the world. This
could have been a perfect format to consider whether the current arrangements for equity were deemed
satisfactory or whether their needs to be a possible structural change to avoid the confusion and debate
around whether we should generally concur that there are two streams of law working in coherence with
each other or whether it would be generally accepted that there are two distinctive areas of law in which
just the administration is fused or even that there is simply just one system and one set of courts that deals
with both equitable and Common law issues in their capacity to be able to be independent and judge both
intricacies and make an informed and moral judgement based simply on the facts of an individual case.
23
Matrimonial Homes Act 1967
24
Ministry of Justice, 'Fit for The Future: Transforming the Court and Tribunal Estate' (HM Stationary Office
2018).

9. In conclusion, this assignment has critically evaluated the ‘fusion debate’ also known as the ‘fusion fallacy’
by discussing the meaning of equity, contrasting its historical developments in terms of both equity and
the Common Law, then going on to briefly touch upon the enactment of the Judicature Acts and how this
caused the question of what we know as the question of fusion. The assignment then goes on to discuss
some of the commonly referred to maxims and finally discussing the available remedies to the courts. In
addendum this assignment provides possible food for thought in terms of reforms and the possible future
of equity where possible making reference to the ‘fusion debate’. Case law has been used throughout
where appropriate and relevant to enhance the points being made and to add ones interpretation of a
clearly complex area of law.

10. Bibliography
Primary Sources
Cases
Boardman v Phillips [1967] 2 AC 46
D&C Builders Ltd v Rees [1966] 2 QB 617
Earl of oxford's Case in Chancery 21 ER 485
Futter and another v HMRC; Pitt and another v HMRC [2013] UKSC 26
Pennington v Waine [2002] EWCA Civ 227
Tinsley v Milligan [1993] UKHL
United Scientific Holdings v Burnley Borough Council [1978] AC 904
Walsh v Lonsdale (1882) 21 Ch D 9
Statutes and Statutory Instruments
Judicature Act 1873
Judicature Act 1875
Matrimonial Homes Act 1967
Secondary Sources
Books
Ashburner WD Browne, Ashburner's Principles Of Equity (Legal Books 1983)
Browne D, Ashburner's Principles Of Equity (2nd edn, Butterworth and Co 1933)
Francis. R, Maxims Of Equity, Collected From And Proved By Cases, Out Of The Books Of The Best Authority In The
High Court Of Chancery: To Which Is Added, The Case Of The Earl Of Coventry, Concerning The Defective
Execution Of Powers. (H Lintot 1739)
Gray J, Lawyers' Latin (2nd edn, Robert Hale 2006)
Mak B, 'Forging The Future Of Fusion' (2016) 22 Trusts and Trustees
Watt G, Equity Stirring: The Story Of Justice Beyond Law (Hart Publishing 2009)
Worthington S, Equity (Oxford University Press 2006)

11. Journal Articles
Ames J, 'Law And Morals' (1908) 22 Harvard Law Review
Burrows A, 'We Do This At Common Law But That In Equity' (2019) 22 O.J.L.S
Evershed L, 'Reflections On The Fusion Of Law And Equity After Seventy-Five Years' (1954) 70 LQR
Command Papers, Law Commission Reports and Government Publications
Ministry of Justice, 'Fit For The Future: Transforming The Court And Tribunal Estate' (HM Stationary
Office 2018)
Dictionary Entries
'Conscience' <https://www.collinsdictionary.com/dictionary/english/conscience> accessed 27
February 2019
'Estoppel'
<https://uk.practicallaw.thomsonreuters.com/Document/I47856AB1DDD611DFAE9091CBB5
1C1C78/View/FullText.html?originationContext=document&transitionType=DocumentItem&c
ontextData=%28sc.Search%29&comp=wluk> accessed 1 March 2019
'Middle Temple' <https://www.collinsdictionary.com/dictionary/english/middle-temple> accessed
27 February 2019