How to Write a First Class Law Dissertation (Practical Example)
Below is a first class law dissertation that was written by an undergraduate student at a top UK university. The below dissertation example will help you to structure and reference your dissertation properly. As you are in the process of writing a dissertation, we assume that you need practical examples rather than a "how to" lecture. So here goes!
Table of Contents
Introduction......................................................................2
Historical Fusion ............................................................4
Fusion Fallacy Debate.....................................................8
Future Fusion or Harmonisation....................................35
Conclusion......................................................................37
Appendices.....................................................................39
Introduction
This dissertation will explore in what sense can it be said that Equity and common law are fused since the passing of the judicature Acts 1873-75. The concept of fusion of common law and Equity will be explored in three different senses: historical, ‘fusion fallacy’ and future. The historic sense of fusion relates to the passing of the Judicature Acts that immediately achieved the procedural fusion of common law and Equity. For the sake of completeness, unsuccessful attempt to argue that substantive fusion was achieved at the time of Judicature Acts will be briefly considered. This will aim to illustrate that fusion is continuous and interactive process and not an event that occurred in a definitive form at a point in time. This living notion of integration or non-integration may differ from one area of law to another. In order to discuss fusion, reference must be made to the ‘fusion fallacies’. For the purpose of this essay, ‘fusion fallacies’ will be instances of change or development in relation to legal or equitable doctrines. It is accepted that the historical truth was that there were rights and remedies that could not be obtained unless claimed in common law or Equity respectively. It will be argued that the Judicature Acts disposed of this problem by granting a single Court with statutory jurisdiction with access to all remedies and jurisdictions to hear and determine all disputes. A subsequent discussion of the non-fusionist argument will be made around the notion of the differences in jurisdictions of the system of Equity and the system of common law. This institutional and philosophical difference between both jurisdictions will be explored from a perspective of natural law. It will then be shown that this rigid separation of both systems had become entrenched in history and lead to conflicting decisions whenever both jurisdictions were exercised on the same situation. Following the Earl of Oxford’s case, the natural law position of Equity was affirmed and no attempt at a fusion of both systems was made. Both systems thus emerged to be a product of dualism that is preventing the full fusion of both jurisdictions. Even if there is no definite position regarding the fusion of Equity and common law, it is right to acknowledge that neither law nor Equity is now stifled by its origin and the fact that once court administers both has inevitably meant that each has borrowed from the other furthering a harmonious development of the law as a whole. The fusion of administration, pleading and procedure provided judges with tools to break down historical barriers. Legal realist thinking and more functional approach contributed to a development and harmonisation of Equity. Judges like Lord Denning and Lord Cooke strived for rationality and individualised justice. Academics like Professor Birks compelled the judges to respond to vigorous modern discourse which is especially significant in developing Equity where more conservative judges have chosen not to enter such structural debates, instead favouring Equity’s pragmatism.
Historic Fusion
Procedural
The Judicature Acts 1873-1875: Beginning of fusion?
Operation of two systems in separate Courts with neither having the authority to grant the remedies of the other court was increasingly seen as tending to produce delay and confusion for the litigant, pressure for wholesale restructuring increased. As a result, the Judicature Acts[6] were enacted thus reforming the structure of the overall jurisdiction. Act abolished the previous individual courts and created a Supreme Court of Judicature but with separate divisions (Chancery, Queen’s Bench and Family Divisions). Key feature of reforms was under s 24 of the 1873 Act[7] all judges were empowered to give effect to legal and equitable rights, obligations, liabilities, defences and remedies. The administration of the systems of law and Equity became fused.
The Judicature Acts[8] finally fused the administration of the King’s Bench and Chancery Courts. This meant that judges hearing cases could use either common law or equitable rules as appropriate, regardless of the formal designation of the court. Intellectually, however, there was a prevailing commitment to dualism, in the words of Worthington, to green and red rules and practices, and to a rigid separation of the two. Despite the practical changes, judges effectively continued to operate as green or red umpires as the circumstances dictated, but without wearing green or red badges or appearing in green or red courts.[9] The conduct of legal advocacy maintained its segregation into Common Law and Equity. Legal education itself often perpetrated this ongoing dualistic approach by focusing on the differences and incompatibilities between the two systems rather than on their evolving overall coherence.
Procedural Fusion affirmed
In the House of Lords debate on the Bill which became the Judicature Act 1873 Lord Hatherley is reported to have said that with the purpose of remedying this conflict of jurisdiction, there had arisen a demand for what was called the fusion of law and Equity. But one must observe that there was in that phrase confusion of what was really meant. The distinction between law and Equity could ‘not be at once abolished by any measure...the Bill did not seek to wipe away those distinctions but whole of the matters connected with a case would be administered by one court which would have charge of it from beginning to end.’[10] An early statement was that of Sir George Jessel MR in Salt v Cooper[11] where the confusion of ‘the fusion of law and Equity’ is clarified. It was not any fusion, or anything of the kind; ‘it was the vesting in one tribunal the administration of Law and Equity in every cause, action, or dispute which should come before that tribunal’. [12] Windeyer J in Felton v Mulligan[13] adopted a more physical metaphor by referring to a statement in Ashburton on Equity [2nd edn, p. 18] in that 'the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters”.[14] Dietrich suggests that ‘any attempts to merge substantive doctrines, or to apply remedies outside their jurisdictional limits’ [15], were often disparaged with the pejorative label 'fusion fallacy'. Meagher, Gummow and Lehane describe fusion fallacy as involving ‘the administration of a remedy, for example common law damages for breach of fiduciary duty, not previously available either at law or in Equity, or the modification of principles in one branch of the jurisdiction by concepts which are imported from the other’.[16]
Substantive
This dissertation will now consider the view that there was a substantive fusion of common law and Equity during the passing of the Judicature Acts[17]. Key evidence for this type of historic fusion is section 25 of the Judicature Acts 1873-75. Section 25(11) provided that whenever there is conflict between the rules of Equity and the rules of common law, ‘the rules of equity shall prevail’. Maitland however attempts to argue away the importance of section 25(11) by claiming the absence of conflict between law and Equity. In his Equity Lectures Maitland suggests that no one has expounded or ever will expound Equity as a single, consistent system, an articulate body of law. It is a ‘collection of appendixes between which there is no very close connexion’[18] and if we suppose that all our law is put into systematic order, ‘we shall find that some chapters of it have been copiously glossed by equity, while others are quite free from equitable gloss’. [19] To a great extent Maitland’s gloss metaphor is semantically incorrect, especially with its theme of continuing confluence between law and Equity. Instead, congruence would be a more appropriate term as it helps to denote the supremacy of Equity before and after 1875. In ‘The Relations between Equity and Law’ Hohfeld dismisses Maitland’s view that there is no conflict between law and Equity by suggesting that even though a large part of the rules of Equity harmonise with the various rules of law, there is nevertheless ‘another large part of the rules of equity-more especially those relating to the so-called exclusive and auxiliary jurisdictions of equity- conflict with legal rules, as a matter of substance, annul or negative the latter pro tanto’.[20]
It is important to turn our attention to John Scott, Earl of Eldon, and his contribution to the ‘fusion’ of common law and Equity. John Scott contributed to the decline of Chancery by making Equity more principled and settled through the adherence to precedent. Adherence to precedent thus became more important than achieving justice in individual cases. The rise of laissez faire thinking and influence of Doctor Adam Smith, lead to a greater respect for the freedom of contract and a decision was good if it reflected ‘the economic spirit of the time’.[21] Equity and common law were thus making closer bonds with each other at the time of the Judicature Acts[22]. In the very act of becoming a system, ‘it becomes legalised, and in becoming merely a competing system of law insures its ultimate downfall.’[23] Equity thus began to lose its in personam nature and began gaining closer resemblance to common law. It is reasonable to maintain that the ‘friendly overtures’ reflected and ‘were a product of a decay in the equitable process. Perhaps the Judicature Acts did little more than complete a fusion in form which had already occurred in spirit’.[24]
However, suggestions that the Judicature Acts 1873-75 changed the substantive rules were dismissed at the outset. In Britain v Rossiter[25] the Court of Appeal dismissed the contention that the Judicature Acts 1873-75 allowed damages to be awarded in a case of an unwritten contract where the parties could not claim under the doctrine of part performance and so resorted to the Lord Cairns’ Act as authority to award damages. Despite the fact that the Judicature Acts 1873-75 did not directly fuse common law and Equity, it nevertheless did not show any resistance to the continuing development of law and Equity even in the direction of integration of principles. Courts can for example develop the law by selecting legal rather than equitable analogies or precedents. This view can be illustrated in AMEV-UDC Finance Ltd v Austin[26], a case dealing with penalties, in which modern Equity followed the common law and so allowed equitable doctrine to ‘wither on the vine’[27] in preference of a coherence in the law. It is thus important to conclude this section with the idea that section 25(11) did not in any sense hinder or affect the development of legal and equitable doctrine. Maitland suggested that ‘the day will come when lawyers cease to inquire whether a given rule be a rule of Equity or a rule of the common law: suffice that it is a well-established rule administered by the High Court of Justice’.[28]
Fusion Fallacy Debate
Meagher, Gummow and Lehane[29] identify as ‘fusion fallacies’ instances of change or development in relation to legal or equitable doctrines not deriving from s 25 or its counterparts.[30] Dietrich effectively defines the two parties to the debate by suggesting that at one end of the spectrum, ‘“fusionists” describes commentators and judges who see the inevitable tendency of the law towards the merger of “Common Law” and “Equitable” doctrine, whereas “non-fusionists” focus on, and give considerable weight to, the jurisdictional and historical differences between Equity and the Common Law’[31] and are resistant to any developments that do not afford significant regard to such differences. The judgments of Mason P and Heydon J in Harris v Digital Pulse Pty Ltd[32] are emblematic of the divide, setting out the competing views. Mason P, dissenting, in that case endorses the views of Professor Tilbury that it is desirable that the jurisdictional origins of rules of law become less and less important and those rules are adapted to changing social realities by courts in fused jurisdictions, where the relationship of those rules inter se and their overall purpose in the legal system as a whole can be better appreciated. After all, ‘what can be done with rules is much more important than where they came from.’[33] As part of his refreshing discussion of the 'fusion fallacy' fallacy,[34] Mason P goes on to cite Deane J in Waltons Stores (Interstate) Ltd v Maher:[35] where he argues that to ignore the substantive effects of the interaction of doctrines of law and Equity within that fused system in which unity, rather than conflict, of principle is now to be assumed is ‘unduly to preserve the importance of past separation and continuing distinctness as a barrier against the orderly development of a simplified and unified legal system which fusion was intended to advance.’[36]
The pro-fusionist debate
Both legal and equitable rules have developed since 1873; and the development of legal rules has been influenced by the established equitable doctrine, with the effect that a situation which would at one time have been treated differently at law and in Equity is now treated in the same manner. If that is what is meant by fusion, there is evidence of it. Century Later the controversy re-emerged with an even rigorous debate. There is a line of evidence to suggest that fusion had been more pervasive than envisaged at the time of the Judicature Acts.
William Blackstone[37] supports the fusion argument by warning us that every definition or illustration which draws a line between the two jurisdictions, by setting law and Equity in opposition to each other, ‘will be found either totally erroneous, or erroneous to a certain degree.’[38] Blackstone then goes to distinguish the idea that the law of Equity and common law are artificial systems, sharing the same principles of justice and positive law. Blackstone shares the same view with Sarah Worthington on the idea that the separate existence of common law and Equity is historically determined, resting on the values of feudalism. Blackstone proclaims this view in that the systems of jurisprudence in the courts both of law and Equity are now ‘equally artificial systems, founded in the same principles of justice and positive law; but varied by different usages in the forms and mode of their proceedings’ [39]: the one being originally derived from the feudal customs, as they prevailed in different ages in the Saxon and Norman judicatures; the other from the imperial and pontifical formularies, introduced by their clerical chancellors. Maitland demonstrates the coexistence of Equity and common law as one, explaining that Equity is simply an addition to the common law as opposed to being a separate legal system independent from the common law. Maitland suggests that no one has expounded or ever will expound Equity as a single, consistent system, an articulate body of law. It is a ‘collection of appendixes between which there is no very close connexion’[40] and if we suppose that all our law is put into systematic order, ‘we shall find that some chapters of it have been copiously glossed by equity, while others are quite free from equitable gloss’. [41]
Aristotle, Equity and congruence
It is important to refer to Aristotle’s concept of legal justice, and to note that for him two forms of justice exist: the general meaning of a virtue, and the specific meaning of (absolute) distributive, and corrective justice. Legal justice is connected to the activity of doing law. Given the universality of laws, it is common for an unjust result to be found in individual cases, Equity can ‘help close the divide between legal justice in the sense of the right application of the rule, and justice as a virtue, as well as distribution and correction’. [42] Lawgivers generally deal with legal justice, where they determine what is the rule, and in giving the rules they speak necessarily in general terms. The judge however interprets the lawgiver’s texts, and to him, technical acuity of the kind the lawgiver ideally possesses is not enough. Aristotle therefore accepts the open texture of the words of law.
Aristotle examines the nature of human actions and says that in matters regarding human conduct and what is good for us, there is no fixity, ‘[...] the agents themselves must in each case consider what is appropriate to the occasion , as happens also in the art of medicine or of navigation’[43] I would therefore argue that the unity of Equity and law is not problematic, especially in the light of Aristotle’s ideas. Equity should thus not be regarded as just supplementary, utilised only at the times of need, but as ‘contexts that law by nature, or of necessity encompasses’[44].
Aristotle joins the virtue of phronesis to judgment as the right discrimination of the equitable. Aristotle elaborates this point by proposing that when we speak of judgment and understanding and practical wisdom and intuitive reason we credit the same people with possessing judgment as having practical wisdom and understanding. All these faculties deal with ultimates, and being a man of understanding and of good or sympathetic judgment consists in being able to judge about the things with which practical reason is concerned ‘for not only must the man of practical wisdom know particular facts, but understanding and judgment are also concerned with things to be done, and these are ultimates’. [45] In Dialogue 1, chapter 16’what is equity’, for example, St. Germain claims that Equity is wisdom that considers all circumstances and should therefore be observed in every law of man, and in every general rule for, as the wise man said ‘be not overmuch right wise; for the extreme right wiseness is extreme wrong’.[46]
Lord Denning and support for individual justice
Lord Denning[47] is considered to be the ‘people’s judge of the twentieth century seeking to achieve individual justice in a line of cases. Meagher, Gummow and Lehane depict the ‘fusion fallacy’ as a ‘rogues gallery invented by offending jurists who deserve to be pilloried to deter others’[48]. Having read the decisions of Denning the reader will no doubt agree with the view that Denning contributed to the fusion of common law and Equity by seeking individual justice in a barrage of cases. Denning’s decisions as well as other developing cases in support of the ‘fusion fallacy’ should be read in the light of the view of Aristotle and St German to realise that the fusion of common law is not philosophically hindered and can easily co-exist side-by-side.
The premise of Denning’s argument lies at the heart of the notion that the doctrine of stare decisis is inefficient in producing justice because if a previous decision was wrong, and caused injustice, nobody could put it right except Parliament. Denning strongly maintains that the doctrine of precedent does nothing ‘to broaden the basis of freedom, rather to narrow it. If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them.’[49] The result of this will be that the law will cease to progress.
This follows closely the words of Aristotle and his medical and nautical analogy on the idea that in matters regarding human conduct and what is good for us, there is no fixity. Denning thus adopts the position of an equitable judge in support of the idea of phronesis. In his book, ‘The Discipline of Law’[50], Denning argues that law cannot be a lawless science but should be a science of law. Denning then compares a scientist to a lawyer and suggests that just as a scientist seeks truth, so the lawyer should seek for justice. This scientific simile is extended to explain that just as the proposition of the scientist fall to be modified when shown not to fit all instances, or even discarded when shown to be in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. A lawyer should ever seek to do ‘his part to see what principles of the law are consonant with justice...the law must be certain. Yes, as certain as may be. But it must be just too.’ [51]
To clarify Denning’s view above it may be useful to refer to several examples where precedent was ignored by the court. In the ‘judgments in foreign currency’ case, in Schorsch GmbH v Hennin[52] the House of Lords turned a blind eye to the Re United Railways of Havana[53] ‘[by which it was held that English Court could only give judgment in sterling. ‘[They] gave judgment for the German company in German Deutschmarks.’[54] Denning argues that ‘seeing that the reasons no longer exist, we are at liberty to discard the rule itself...[and according to Dicey], “such an encroachment of the law of procedure upon substantive rights is difficult to justify from the point of view of justice, convenience or logic”.’[55]
Similar to Denning’s arguments above, Worthington presents a similar need for fusion of common law and Equity. Worthington summarises the non-fusionist argument in that ‘the core concerns are that Equity is a uniquely conscience-based and discretionary regime whereas the Common Law is a rules and rights-based regime.’[56] Worthington rightly rejects these arguments as drawing stark distinctions that simply do not exist in reality. She concludes that the aims of achieving justice require both jurisdictions to consider moral reasoning at times.
Denning was the major force in bringing the ‘broad rule of justice’ back to life after it was first developed in Hughes v Metropolitan Railway Co[57]. The rule in the aforementioned case embraced the equitable notion that it is the first principle upon which all Courts of Equity proceed. If parties who have entered into definite and distinct terms involving certain legal results- certain penalties or legal forfeiture- afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will ‘not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties’.[58]
In the Central London Property Trust Ltd v High Trees House Ltd[59] Denning did away with the requirement that estoppels only apply to statements of fact and that payment of a lesser sum is no consideration for the discharge of a larger sum. In the abovementioned case Denning explains that in each case the court held the promise to be binding on the party making it, even though under the old common law it might be difficult to find any consideration for it. The courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it. It is in that sense and that sense only, that such a promise gives rise to estoppels. The decisions are a natural result of the fusion of law and Equity. ‘In my opinion, the time has now come for the validity of such a promise to be recognised. The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the fusion of law and equity leads to this result, so much the better.’ [60] At this time of day however, when law and Equity have been joined together for over seventy years, principles must be reconsidered in the light of their combined effect. It is so to be noticed that in the Sixth Interim Report of the Law Revision Committee, paras. 35, 40, it is recommended that such a promise should be enforceable in law even though no consideration for it has been given by the promise.
It is now important to consider whether High Trees[61] abolished the need for consideration. The point was discussed in Combe v Combe[62] where the Court of Appeal declined to extend the High Trees principle. Denning said that much as he is inclined to favour the principle stated in the High Trees case, it is important that it should not be stretched too far, lest it should be endangered. That principle does ‘not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be unjust to allow him to enforce them, having regard to the dealings which have taken place between the parties’.[63] In Moorgate Ltd v Twitchings[64] Denning gave an accurate description of the role of estoppels. He stressed that estoppel is not a rule of evidence neither is it a cause of action. It is a principle of justice and of Equity. It comes to this: ‘when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so’.[65] It is important to accentuate the personal nature of Equity by referring to Plimmer v Wellington Corporation[66] where the Privy Council held that ‘the court must look at the circumstances in each case to decide in what way the equity can be satisfied’.[67] The Privy Councils then went on to give instances of the aforementioned principle: ‘In Inwards v Baker...it was held that, despite the legal title being in the plaintiffs, the son had an Equity to remain in the bungalow “as long as he desired to use it as his home”, Danckwerts LJ said: “equity protects him so that injustice may not be perpetrated”. In E.R. Ives Investment Ltd v High, it was held that Mr. High and his successors had an equity which could only be satisfied by allowing him to have a right of access over the yard, “so long as the block of flats has its foundations on his land”. In Siew Soon Wah v Yong Tong Hong...the Privy Council held that there was an “equity or equitable estoppels protecting the defendant in his occupation for 30 years”.’[68]
The case of Solle v Butcher[69] is generally regarded as a landmark in the law of mistake. In this case the Court of Appeal turned the law on common mistake in a new direction. Traditionally, common mistakes in making of contracts have legal effect within the common law. But where the contract is not void at law, equitable jurisdiction can be summoned when it would be unconscionable for a person to insist upon their legal rights. The Solle v Butcher case extends the equitable jurisdiction so that when there is no blameworthy behaviour of either party during the formation of a contract, the court still has the power to rescind the contract on the application of one of the parties vis-à-vis a fundamental mistake and when the insistence upon a legal right because of the mistake is unconscionable. The court circumscribed the operation of common law in unilateral mistakes in favour of the more flexible jurisdiction of Equity. Yeo suggests that the problem is in defining the circumstances that amount to unconscionability in specific types of situations. “Unconscionable behaviour in the procuring of the formation of agreements has been an ancient and fertile area for equitable intervention, including cases where one party has taken advantage of the mistake of another.”[70]
In Solle[71] Denning extended the common law principle of a mistake which acts as a clear example of fusion of common law and Equity. Denning distinguishes between two kinds of mistake, one at common law and one in Equity. Or in other words, a mistake which renders the contract void, and a mistake which renders the contract not void, but voidable. Much of the difficulty which has attended this subject has arisen because, before the fusion of law and Equity, the courts of common law, in order to do justice in the case in hand, extended this doctrine of mistake beyond its proper limits and held contracts to be void which were really only voidable. Since the fusion of law and Equity, ‘there is no reason to continue this process, and it will be found that only those contracts are now held void in which the mistake was such as to prevent the formation of any contract at all.’[72]
Before discussing this U-turn in the law, it is important to briefly consider Equity’s jurisdiction for common mistake before 1950. Shortly speaking, there is nothing to suggest that the courts at the time of Bell v Lever Brothers[73] thought that Equity would act over and above the common law, in order to hold voidable a contract which the common law would hold valid. In a sense, the case of Solle[74] has contributed to the development of a new wider equitable jurisdiction. It side-stepped one of the problems; since rescission is a discretionary remedy, there is no longer a ‘black and white’ answer to an allegation of mistake. If the common law is called upon to give a remedy, the result is binary: either ‘valid’ or ‘void’. Cartwright suggests that ‘Equity gives a wider choice, in that a decision that the mistake is operative does not lead inexorably to a remedy.’[75] In Judicature Acts 1873-1875 Equity and common law can be seen juxtaposed in the same case dealing with a pure mistake which the common law would refuse to recognise as a ground for relief but which Equity has allowed to found rescission. It is pertinent to note that by expanding the jurisdiction of common law Equity is essentially introducing a greater degree of justice because it is filling up the ‘general rule of the law of men’, our case the common law.
