Chancery Amendment Act 1858

Chancery Amendment Act, 1858

Long title An Act to amend the course of procedure in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the county palatine of Lancaster.
Citation 21 & 22 Vict. c. 27
Introduced by Hugh Cairns
Territorial extent United Kingdom
Dates
Royal assent 28 June 1858[1]
Commencement 1 October 1858
Other legislation
Repealed by Supreme Court of Judicature (Officers) Act 1879
Statute Law Revision and Civil Procedure Act 1881
Statute Law Revision and Civil Procedure Act 1883
Status: Repealed
Text of statute as originally enacted

The Chancery Amendment Act 1858 (21 & 22 Vict. c. 27) also known as Lord Cairns' Act after Sir Hugh Cairns, was an Act of the Parliament of the United Kingdom that allowed the English Court of Chancery, the Irish Chancery and the Chancery Court of the County Palatine of Lancaster to award damages, in addition to their previous function of awarding injunctions and specific performance. The Act also made several procedural changes to the Chancery courts, most notably allowing them to call a jury, and allowed the Lord Chancellor to amend the practice regulations of the courts. By allowing the Chancery courts to award damages it narrowed the gap between the common law and equity courts and accelerated the passing of the Judicature Act 1873, and for that reason has been described by Ernest Pollock as "prophetic".[2]

After the English Court of Chancery was dissolved by the Supreme Court of Judicature Act 1873 the Act lost relevance, and in England and Wales it was gradually repealed by a succession of acts up to the 1880s. However, the Irish courts were unaffected by the 1873 Act and the Chancery Amendment Act is still law in the Republic of Ireland.

Background

During the 19th century the higher courts were divided into two main types—courts of Common Law, such as the Court of Common Pleas, and Courts of Equity such as the Court of Chancery; this reflected the two English court systems which had existed since the Middle Ages. Rules on court jurisdiction meant that common law courts could not grant orders of specific performance or injunctions, only damages, and courts of equity could only grant injunctions and orders of specific performance, not damages.[3] This meant that a winning party in a chancery case who sought to claim damages was forced to open a second claim in a common law court,[2] filling the courts with unnecessary cases and causing additional expense for the parties. The same was true of winners of common law cases who sought specific performance or injunctions. The common law courts were authorised to issue injunctions and orders of specific performance by the Common Law Procedure Act 1854, but nothing in the Act mentioned the Chancery courts.[3]

A Royal Commission "appointed to inquire into the Process, Practice and System of Pleading in the Court of Chancery" had been created in 1850 to investigate possible reforms to the Courts of Chancery,[4] and they recommended (among other things) that the chancery courts be given the power to order damages and use a jury.[5]

The Act to implement the Commission's recommendations was introduced in 1857 as "Chancery amendment. A bill to amend the course of procedure in the High Court of Chancery, the Court of Chancery in Ireland, and the Court of Chancery of the county palatine of Lancaster",[6] and after passing through several committees was introduced to the House of Commons on 14 May 1858.[6] The Act was piloted through Parliament by Sir Hugh Cairns (later Lord Cairns), the Solicitor General for England and Wales, and for this reason is commonly known as Lord Cairns' Act.[7] It was passed by Parliament and came into force on 1 November 1858.[8]

Provisions of the Act

The Act is relatively small, containing only 12 sections, including several sections on procedures.[8]

Repeal

After the Supreme Court of Judicature Act 1873 dissolved the English Court of Chancery and unified the common and equity courts into the High Court of Justice, the 1858 Act became irrelevant since the ability to issue injunctions, order specific performance or award damages was given to all of the senior courts.[2] In the United Kingdom the act was repealed piecemeal by multiple Acts of Parliament, including the Supreme Court of Judicature (Officers) Act 1879 and the Statute Law Revision and Civil Procedure Act 1881. The act was formally repealed in its entirety by the Statute Law Revision and Civil Procedure Act 1883.[2]

Although the Act applied to the Irish courts, they were unaffected by any of the repealing legislation.[20] As a result, the provisions of the Act are still law in the Republic of Ireland, although they have been transferred several times.[20] The Irish Chancery was merged into the High Court of Ireland by the Supreme Court of Judicature Act (Ireland) 1877, but the same Act also transferred the rights under the 1858 Act to the new High Court. The Government of Ireland Act 1920 transferred these rights to the new Supreme Courts of Northern Ireland and Southern Ireland respectively, and the Judicature (Northern Ireland) Act 1978 finally repealed the 1858 Act in Northern Ireland.[20] The Act is still valid in the Republic of Ireland, however, and the rights continue to be exercised by the High Court of Ireland.[20]

In many British Dominions local statute was passed to bring the 1858 Act into local law, and it is still valid in Ontario under the Courts of Justice Act 1984 and British Columbia under the Supreme Court Act 1986.[20]

The Act was influential as the first step towards a unified High Court, with equal abilities for both equity and common law branches.[21] Evidence suggests that the changes were easily absorbed by the Court, and there are no cases which suggest it caused problems either in cases or in Parliament.[22]

References

  1. ↑ "MINUTES. (Hansard, 28 June 1858)". Hansard. Retrieved 2009-07-25.
  2. 1 2 3 4 McDermott (1987) p.1
  3. 1 2 Ramjohn (1998) p.6
  4. ↑ Clarke, Sir Anthony (2008). "The Woolf Reforms: A singular event or an ongoing process?" (PDF). Archived from the original (PDF) on December 21, 2008. Retrieved 2009-07-25.
  5. 1 2 Lobban, Michael (2004). "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II". Law and History Review. 22 (3). ISSN 0738-2480.
  6. 1 2 "HCCP - Full Papers". House of Commons Parliamentary Papers. Retrieved 2009-07-25.
  7. ↑ Millett, Peter (2005). "Lives of the Judges: Jessel, Cairns, Bowen and Bramwell". Law Quarterly Review (121). ISSN 0023-933X.
  8. 1 2 Chancery Amendment Act 1858 S.1
  9. ↑ Chancery Amendment Act 1858 S.2
  10. ↑ Sharma (2003) p.226
  11. 1 2 Chancery Amendment Act 1858 S.3
  12. ↑ Chancery Amendment Act 1858 S.4
  13. ↑ Chancery Amendment Act 1858 S.5
  14. ↑ Chancery Amendment Act 1858 S.6
  15. ↑ Chancery Amendment Act 1858 S.7
  16. ↑ Chancery Amendment Act 1858 S.8
  17. ↑ Chancery Amendment Act 1858 S.9
  18. ↑ Chancery Amendment Act 1858 S.11
  19. ↑ Chancery Amendment Act 1858 S.12
  20. 1 2 3 4 5 McDermott (1987) p.6
  21. ↑ Jolowicz (1975) p.224
  22. ↑ Jolowicz (1975) p.226

Bibliography

Primary Sources

Secondary Sources

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