Under the state of Winchester 1275, time immemorial dates back to 1189
The custom must have existed since time immemorial
The custom must have been carried out without using force, done openly, not in secret, no one must have given permission
The custom must have been exercised peaceably, openly and as of right
Prevents the courts needing to recognise anything which is too uncertain
The custom must be definite as to locality, nature and scope
Even if the first three tests are passed the courts can refuse to recognise the custom if it it unreasonable
The custom must be reasonable
Proved that a right to set up a refreshment stall on public footpath had been given in C14th
Simpson v Wells 1872
Fishing had only taken place because licence was granted each year
Mills v Colchester Corporation 1867
Tenants of manor claimed they were entitled to take as much turf as required from common land on manor
Wilson v Willes 1806
Damage being caused by mining, mine owners claimed right to mine without liable to compensate for subsidence
Wolstanton Ltd and Duchy of Lancaster v Newcastle under Lyne Borough Council 1940
Customary duty to fence land to prevent cattle straying from common
Egerton v Harding 1974
William Conqueror 1066
Begin more organised system of justice, Curia Regis established
Henry II 1154-1189
Country divided into circuits for judges, best practice, unified and common law developed
Writs
A writ had to be obtained to start a case, and offence had to fit exact wording of writ, sections were often written inaccurately and cases could not proceed
Restriction on writs being written, an offence had to fit an existing writ and fictions began to develop
Provision of Oxford 1258
Defects in common law
Only remedy was damages, which was often inappropriate, juries could be intimidated, too much attention paid to formalities, did not recognise the trust
King
Fountain of justice, prerogative to make any order considered correct
Chancellor
Both lawyer and priest, known as the keeper of the king’s conscience. Based decisions on natural justice and fairness. Court of Chancery came into being under control of Chancellor
King ruled where there was conflict between common law and equity, equity would prevail
Earl of Oxford Case 1615
John Seldon
Equity varied by the length of the Chancellor’s foot
C17 and C18
Chancery courts became more rigid, very slow, people wanted both common law and equitable remedies
Gave the courts power to issue both common law and equitable remedies
Chancery Amendment Act 1950 and Common Law Procedures Act 1852-60
Look at intention rather than wrong formalities followed
Equity looks to the intention and not the form
Deed held to be altered by a simple contract, should have been altered by another deed
Berry v Berry 1929
Equitable principle will not be granted to a claimant who has not acted fairly
He who comes to equity must come with clean hands
Rees refused to pay full amount, builders sued, equitable estoppel not granted to Rees as had taken advantage of builders’ financial difficulties
D&C Builders Ltd v Rees 1965
