How when and why were the chancery and common law courts merged? What had previously been the respective roles of each? Was chancery court system the last one to finally be subsumed by the common law courts? What social and political forces drove this change and what political implications did it have?
Any authoritative textbook on Equity and Trusts can answer this question. 1.2.2 The effect of the Judicature Act 1873 The distinction between equity and the common law was both practically and intellectually significant before the Judicature Act 1873. Before that Act came into full effect in 1875 it was necessary for a litigant to decide whether her claim related to common law or to equity. To select the wrong jurisdiction would mean that the claim would be thrown out and sent to the other court. So, if a claim for an equitable remedy were brought before a common law court, that common law court would dismiss the claim and the claimant would be required to go to the Court of Equity instead. This problem was explained in Charles Dickens’s Bleak House in the following way: Equity sends questions to Law, Law sends questions back to Equity; Law finds it can’t do this, Equity finds it can’t do that; neither can so much as say it can’t do anything, without this solicitor instructing and this counsel appearing. So it was that the litigant trudged disconsolately between the various courts seeking someone who could deliver judgment on her claim. Judges like Lord Eldon and Lord Cottenham were well-known for the delays in reaching their judgments which could take several years. This was a part of the ‘groping and floundering condition’ which Dickens observed in the High Court of Chancery. It should also be recalled, as outlined above, that Lord Macclesfield was convicted of embezzlement while acting as Lord Chancellor and Lord Bacon was also found to have accepted ‘presents’ (which today we would consider to be bribes) in office. 74 Consequently, the reputation of the chancery courts was very low by the late 19th century. The popular conception of equity – and one which accords with the reality – was that the chancery courts were expensive and caused extraordinary delays. By 1873 pressure had built for reform, and Dickens played an important part in that.75 This led to the enactment of the Judicature Act 1873. There were two particular objectives: one to fuse equity and common law, and the second to reorganise the courts. The fusion of common law and equity took the shape of permitting any court to award common law remedies or equitable remedies without the need to petition one particular court or another. 76 Instead proceedings were simply begun in the High Court, which was divided into the divisions we recognise today. Lord Watson explained that the purpose of the Judicature Act as being ‘to enable the parties to a suit to obtain in that suit and without the necessity of resorting to another court, all remedies to which they are entitled in respect of any legal or equitable claim or defence properly advanced by them, so as to avoid a multiplicity of legal proceedings’.77 The result of the Judicature Act 1873 was that the practical distinction between common law and equity disappeared. However, it is vitally important to understand that the intellectual distinction remains. Significantly s 25 of the Supreme Court of Judicature Act 1873 provided: Generally, in all matters not hereinbefore particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail. Thus the principles of equity prevail over the principles of common law. The decision in the Earl of Oxford’s Case thus received a statutory form. So, in cases like Walsh v Lonsdale78 where there was a clash between a failure to comply with a common law rule as to the proper creation of a lease (which would have held the lease to be unenforceable) and the equitable doctrine of specific performance of contracts, it was held that the equitable principle of specific performance would give effect to the agreement to provide a lease. The passage of this legislation was not without its own perturbations. This fusion of common law and equity raised concerns from many equity practitioners. Previously, practitioners and judges before the chancery courts had been specialists in equity. Now, or so the argument ran, there would be practitioners and judges dealing with the culturally different principles of equity who had only previously been trained in common law. Such people referred to this process of fusion of common law and equity as being, in truth, a confusion of common law with equity. Whether or not that has turned out to be the case can only be established from a study of the materials in this book. There has not, it is suggested, been any obvious step-change between the rigidification of the principles of equity under Lord Eldon in the early 19th century and the decisions reached after the 1873 Act. Equity clearly functions now on the basis of the doctrine of precedent, but that is not due in particular to the 1873 Act. As considered below, the intellectual sophistication necessary to reach judgments on the basis of conscience on a case-by-case basis and yet in accordance with general principles has emerged in the late 20th century and at the beginning of the 21st century, as considered at the end of the next section. As considered below, there remains a division between certain claims and remedies which are available only at common law, and other claims and remedies available only in equity. Alastair Hudson, Equity and Trusts (2022, 10 edn, Routledge), pages 15-6.
When a judge decides a case there will be An order - e.g. &quot;Smith shall pay Jones £100,000&quot; Reasons for the decision - i.e. a description of the evidence, and the judge's findings of fact and legal reasoning. Sometimes a party, even though they have completely won, is nevertheless aggrieved by some things the judge has said in the Reasons (or in the way the judge has handled the trial - e.g. the judge's interventions). For example the judge may have said that the winning party was not a credible witness but they nevertheless won because of the evidence of other witnesses who were found to be credible. The rule in England and Wales is that you can only appeal orders. So if the order is completely in your favour you cannot appeal just because you don't like the reasons.
See this working paper by Silvia Ferreri for an excellent write-up of this issue. The key point is that because each linguistic version of legislation is equally authentic, none can be taken as the authentic version. The court then resolves this by applying two principles: comparing the linguistic versions and giving deference to legislative intent. This is necessarily a case-by-case analysis. The paper calls attention to Case C‑445/09 arising from the Netherlands, where 9 different linguistic versions are compared and shows that the straightforward Dutch reading of the legislation in question isn't compatible with the other linguistic versions or legislative intent. In paragraph 25, the decision also contains a concise summary of the general principle of interpreting laws in multiple languages: According to settled case-law, the need for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22).
Before getting into the technical answer to this question it is worth noting that when matters of a constitutional nature are involved then in practice it is not just a matter of a technical &quot;legal&quot; answer. Students and academics like to pose hypothetical questions such as &quot;What would happen if the Queen refused assent to a Bill?&quot; or &quot;If Parliament is supreme, could it abolish the courts?&quot; etc. The practical reality is that a liberal democracy, such as ours, ultimately relies on those in positions of power to respect the democratic conventions and preserve the constitution. When there is a legal angle to some constitutional issue the courts will play their part but, whatever legal analysis their judgments may contain, they will always have in mind the importance of maintaining our democratic system. It is also worth noting that where an Act contains an &quot;ouster&quot; clause (saying that a certificate of X shall not be questioned in any court of law) the courts always find a way to interpret that so that it does not apply in any case where the courts think they should adjudicate! Those preliminaries out of the way, I think the technical legal answer to your question is that first of all the Speaker decides and provides a certificate under s.2(2). You will see that s.2(1) deals with &quot;any other bill&quot; (your third bullet point) and s.2(2) requires a certificate from the Speaker that &quot;the provisions of this section have been duly complied with&quot; (i.e. that it is indeed in the &quot;any other bill&quot; category). Of course there is a further question of whether, if the Speaker gets it wrong, the courts could intervene and exactly how that might happen (the so-called &quot;John Bercow question&quot; of what if a Speaker goes rogue), but the initial technical answer to you question is &quot;the Speaker of the House of Commons&quot;.
Does the legal usage of the word court as in a court of law derive from the idea of a royal court, as an expression of the idea that the original courts of law were ultimately simple vehicles for the exercise or discharge of royal authority on behalf of the royal sovereign? Yes: The meaning of a judicial assembly is first attested in the 12th century, and derives from the earlier usage to designate a sovereign and his entourage, which met to adjudicate disputes....
The UK has parliamentary sovereignty, not separation of powers Unlike, say, the United States, where the legislature, the judiciary, and the executive have co-equal power in their respective spheres, in the UK, the judiciary and the executive are subordinate to Parliament. The courts have no power to nullify an Act of Parliament for being unconstitutional like they do in jurisdictions where a written constitution gives them such a power like the USA, Canada, or Australia. The purpose of the Declaration of Incompatibility is to advise Parliament that the law they have passed contradicts the HRA and they should think about that and decide if that’s what they really wanted to do. That means that the UK Parliament could pass the Arbitrary Bollock Removal Act 2023 (ABRA) tomorrow and it would be valid law. The courts can still provide judicial review of the actions of the executive under ABRA but they cannot declare the law a nullity. That is, the Minister’s actions can be scrutinised to ensure they followed the ABRA and other established principles such as procedural fairness and, if they didn’t, declare the executive actions void. However, if they did follow the law, off come your nuts.
If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked.
There is no particular mention in the OSCOLA guidelines for how to refer to laws of England and Wales. In academic papers it is common to see both &quot;English Law&quot; and &quot;English and Welsh Law&quot;, usually depending on whether the particular point relates directly to England, Wales or both. However, in the case of Welsh Measures and Statutory Instruments of Wales then it would be correct to only describe the laws as &quot;Welsh Law&quot;.