Substantive Fusion Essay
The JA does not allow courts to award damages for the breach of equitable obligation therefore, it is argued that substantive fusion has not occurred. This strengthens the dualism argument and supports Ellesmere’s comment. However, as common law and equity are administered in one court it is argued that each jurisdiction has borrowed from the other but, this has not happened because the remedies do not cross over. However, it is argued that the different remedial responses of the common law and equity arose as ‘an accident of history.’
Furthermore, Lord Diplock stated that the ‘waters of the confluent streams of law and equity have surely mingled now;’ this suggests that substantive fusion has occurred. However, this comment is criticised …show more content…
because it does not clarify what is meant by mingling; it cannot mean that damages for purely equitable obligations or equitable remedies such as injunctions are more available. Lord Diplock was said to be guilty of the so-called ‘fusion fallacy’ if he was suggesting that there is no longer any significant functional difference between equity and the common law. Moreover, Lord Diplock’s statement has been described as ‘the low water mark of modern English jurisprudence;’ this suggests that the comment is unclear; thus, it can be argued that Lord Diplock’s statement is weak. However, Professor Peter Birks observed that ‘it is dangerous, not to say absurd, almost 120 years after the Judicature Acts, to persist in habits of thought calculated to submerge and conceal half of our law. Meagher, Gummow and Lehane ... did not attempt to say why the properties and dispositions of equity, which they rightly admire, should be confined to something less than the whole law. They did not attempt it because it cannot be done.’ This suggests that substantive fusion has not occurred and it is incorrect to suggest fusion has occurred because both jurisdictions are completely different. The lack of consensus between judges and legal commentator demonstrates that there is inconsistency in the law.
Nevertheless, in Barclays Bank, Lord Wilberforce stated ‘there is surely no difficulty in recognising the co-existence … of concurrent legal and equitable rights and remedies.’ This suggests that procedural fusion has occurred.
However, in Walsh, the difference between the two jurisdictions was ignored and the remedy of distress was awarded for the breach of an equitable leasehold; a similar approach was taken in Seeger where damages were awarded for a breach of confidence action. This provides evidence that the rules and remedies of equity and common law moving closer together and weakens Lord Ellesmere’s statement. However, the compensation in these cases was described as ‘equitable compensation’ rather than common law damages. Furthermore, in Swindle, Lord Justice Hobhouse stated that common law damages were not available for breach of fiduciary duty and it was still necessary to consider the distinctions between the two jurisdictions even after the enactment of the JA. In contrast, Pro-fusionists have wanted remedial fusion since the enactment of the JA and have stated that there should be a ‘basket of remedies available.’ This weakens Ellesmere’s comment and demonstrates that the law should develop as a whole and equity and common law borrow from each other. Nevertheless, it is also argued that if fusion means that there is no distinction or difference between legal rights and remedies and equitable rights and remedies, it cannot be
supported.
However, in the later case of Bristol and West Building society, Lord Justice Millet stated that equitable compensation should not be confused with common law damages; this demonstrates that both jurisdictions are separate and suggests that they are developing separately. However, the decision in Harris indicates that equity and common law may become one in the future if judges or Parliament clarify what can be borrowed over from the two jurisdictions. Nonetheless, to propose that both jurisdictions have already fused could be argued as pushing the boundaries of fusion even though remedial fusion has been accepted in other Commonwealth countries such as New Zealand. This suggests that legal rights remain legal rights, and equitable rights remain equitable rights for now. These contradictory statements create uncertainty in the law and demonstrate that Judge Stevenson may have been correct when he stated ‘that talk of fusing the law and equity only results in confusing and confounding the law.’ The above cases demonstrate that the English law no longer preserves the strict distinction between equitable and legal rules that was maintained before the enactment of the JA. This suggests that the law has developed as a whole so that there has been some synthesis of legal and equitable rights and remedies and cross-fertilisation between them, and some of the old differences between legal and equitable rights and remedies cease to be relevant. Therefore, Lord Diplock may have been correct in his statement. Radcliffe and Cross stated the two jurisdictions ‘are working in different ways towards the same ends, and it is therefore as wrong to assert the independence of one from the other as it is to assert that there is no difference between them.’ This suggests that the common law and equity remain distinct, but mutually dependent, aspects of law. This supports Lord Ellesmere’s to some extent.
Furthermore, Lord Diplock stated that the ‘waters of the confluent streams of law and equity have surely mingled now;’ this suggests that substantive fusion has occurred. However, this comment is criticised …show more content…
because it does not clarify what is meant by mingling; it cannot mean that damages for purely equitable obligations or equitable remedies such as injunctions are more available. Lord Diplock was said to be guilty of the so-called ‘fusion fallacy’ if he was suggesting that there is no longer any significant functional difference between equity and the common law. Moreover, Lord Diplock’s statement has been described as ‘the low water mark of modern English jurisprudence;’ this suggests that the comment is unclear; thus, it can be argued that Lord Diplock’s statement is weak. However, Professor Peter Birks observed that ‘it is dangerous, not to say absurd, almost 120 years after the Judicature Acts, to persist in habits of thought calculated to submerge and conceal half of our law. Meagher, Gummow and Lehane ... did not attempt to say why the properties and dispositions of equity, which they rightly admire, should be confined to something less than the whole law. They did not attempt it because it cannot be done.’ This suggests that substantive fusion has not occurred and it is incorrect to suggest fusion has occurred because both jurisdictions are completely different. The lack of consensus between judges and legal commentator demonstrates that there is inconsistency in the law.
Nevertheless, in Barclays Bank, Lord Wilberforce stated ‘there is surely no difficulty in recognising the co-existence … of concurrent legal and equitable rights and remedies.’ This suggests that procedural fusion has occurred.
However, in Walsh, the difference between the two jurisdictions was ignored and the remedy of distress was awarded for the breach of an equitable leasehold; a similar approach was taken in Seeger where damages were awarded for a breach of confidence action. This provides evidence that the rules and remedies of equity and common law moving closer together and weakens Lord Ellesmere’s statement. However, the compensation in these cases was described as ‘equitable compensation’ rather than common law damages. Furthermore, in Swindle, Lord Justice Hobhouse stated that common law damages were not available for breach of fiduciary duty and it was still necessary to consider the distinctions between the two jurisdictions even after the enactment of the JA. In contrast, Pro-fusionists have wanted remedial fusion since the enactment of the JA and have stated that there should be a ‘basket of remedies available.’ This weakens Ellesmere’s comment and demonstrates that the law should develop as a whole and equity and common law borrow from each other. Nevertheless, it is also argued that if fusion means that there is no distinction or difference between legal rights and remedies and equitable rights and remedies, it cannot be
supported.
However, in the later case of Bristol and West Building society, Lord Justice Millet stated that equitable compensation should not be confused with common law damages; this demonstrates that both jurisdictions are separate and suggests that they are developing separately. However, the decision in Harris indicates that equity and common law may become one in the future if judges or Parliament clarify what can be borrowed over from the two jurisdictions. Nonetheless, to propose that both jurisdictions have already fused could be argued as pushing the boundaries of fusion even though remedial fusion has been accepted in other Commonwealth countries such as New Zealand. This suggests that legal rights remain legal rights, and equitable rights remain equitable rights for now. These contradictory statements create uncertainty in the law and demonstrate that Judge Stevenson may have been correct when he stated ‘that talk of fusing the law and equity only results in confusing and confounding the law.’ The above cases demonstrate that the English law no longer preserves the strict distinction between equitable and legal rules that was maintained before the enactment of the JA. This suggests that the law has developed as a whole so that there has been some synthesis of legal and equitable rights and remedies and cross-fertilisation between them, and some of the old differences between legal and equitable rights and remedies cease to be relevant. Therefore, Lord Diplock may have been correct in his statement. Radcliffe and Cross stated the two jurisdictions ‘are working in different ways towards the same ends, and it is therefore as wrong to assert the independence of one from the other as it is to assert that there is no difference between them.’ This suggests that the common law and equity remain distinct, but mutually dependent, aspects of law. This supports Lord Ellesmere’s to some extent.