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vypracovaná otázka (19kový) č. 10 (q_10.doc)

10)

1. Equity – development and maxims

The student will learn quite early in his historical studies how equity came into being. He will learn how, in the Middle Ages, the courts of common law failed to give redress in certain types of case where redress was needed, and how the disappointed litigants petitioned the King, who was the “fountain of justice”, for extraordinary relief: how the King, through his Chancellor eventually set up a special court, the Court of Chancery, to deal with these petitions and how the rules applied by the Court of Chancery gardened into law and became a regular part of the law of the land. The most important branch of equity is the law of trusts, but equitable remedies such as specific performance and injunction are also much used. The student will learn how in case of ’conflict variance’ between the rules of common law and the rules of equity, equity came to prevail. This was by means of what was called a common injunction. Suppose that A brought an action against B in one of the common law courts, and in the view of the Court of Chancery the action was inequitable. B’s proper course was to apply to the Court of Chancery for an order, called a common injunction, directed to A and ordering him not to continue his action. If A defied the injunction the Court of Chancery would put him in prison for contempt of court. Equity thus worked ’behind the scenes’ of the common law action; the common law principles were theoretically left intact, but by means of this intricate mechanism they were superseded by equitable rules in all cases of conflict or variance. The result justified the sarcasm of the critic who said that in England one court was set up to do injustice and another to stop it.

This system went on until 1875, when as a result of the Judicature Act 1873 the old courts of common law and the Court of Chancery were abolished and on their place was established a single Supreme Court of Judicature, each branch of which had full power to administer both law and equity. Also common injunctions were abolished and instead it was enacted that in cases of ’conflict or variance’ between the rules of equity and the rules of common law, the rules of equity should prevail.

Maxims

Another important feature that distinguishes common law from equity is the term ’maxim’. As stated before, equity’s purpose is to achieve justice and fairness. To fulfil this courts have developed a set of rules to govern the application of equity – maxims which are different from rules which apply in the common law. Examples:

1. Equity will not suffer a wrong to be without a remedy. Equity will only intervene when there is no adequate common law remedy.
2. Equity follows the law. Equity recognises legal rights and does not take the place of the common law.
3. He who comes to equity must come with clean hands. A litigant who has behaved unfairly in the dispute will be denied an equitable remedy.
4. Equitable remedies are discretionary. Litigants do not have a right to an equitable remedy. The courts will decide whether to grant a remedy after considering the individual circumstances of each case.

2. The Jury

Crown court:

The jury consists of 12 members, called the jurors (jurymen). The whole jury sitting is called jury panel.

The head of a jury is called a foreman.

Eligibility:

As for the age: 18 – 70 (or 65),

As for the nationality: British,

The other conditions: living in England for last 5 years and to be an electoral register.

Every member of the jury must swear a jury’s oath.

It is an obligation to sit in a jury, but there are several possibilities to be excused. Some persons are disqualified.

Rejecting of sitting in the jury is considered for contempt of a court.

The jury returns a verdict in a specific case. The verdict is unanimous (all 12 members), the decision of the majority of 10, otherwise a new jury is sworn (the old one dismissed – it is called hung jury).

The party to an action is allowed to challenge the jury – a new jury is formed.