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…
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
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…
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