Chancery Amendment Act 1858
Encyclopedia
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 injunction
s 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".
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the Act lost relevance, and in England and Wales it was gradually repealed by a succession of acts up to the 1880s.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
.
, 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 injunction
s, only damages
, and courts of equity could only grant injunctions and orders of specific performance, not damages. 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, 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.
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, and they recommended (among other things) that the chancery courts be given the power to order damages and use a jury.
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", and after passing through several committees was introduced to the House of Commons on 14 May 1858. 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. It was passed by Parliament and came into force on 1 November 1858.
"in all cases in which [they] have jurisdiction to entertain an application for an injunction.. or specific performance". Although this section was repealed by, the general principles it set out are still valid law and are found in Section 50 of the Supreme Court Act 1981.
Section III of the Act introduced the right of the Chancery judges to call a jury
to assess the amount of damages to be awarded and "any question of fact arising in a suit or proceeding". These juries were to consist of the same type of person and be due the same rights as any jury in a common
or criminal law
case, and the judge was allowed to impose on them any rules permissible in a common or criminal trial. Historically Chancery judges were loath to call juries, but the right existed for them to do so anyway.
Section IV gave the Chancery courts the same rights (in awarding damages and calling damages) as any other superior court allowed to do so. Section V reserved the right of the court to conduct a trial without a jury, and section VI allowed them to order a jury to assess damages in any other common law court, on Assize or in front of a High Sheriff
.
Sections VII onwards were procedural changes. Section VII itself allowed the court to order any party to provide all evidence to the other party without exception, with any party who refused to do so paying costs to the other side unless the judge said the refusal was reasonable. Section VIII extended the Act to the Irish Chancery, and Section IX allowed the Lord Chancellor
to amend the Irish Chancery practice regulations. Section X extended the Act to the Court of Chancery
and the Chancery Court of the County Palatine of Lancaster, and Section XI allowed the Lord Chancellor to amend practice regulations of these courts. These amendments were to be placed before Parliament, and would come into force within 36 days.
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. 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.
Although the Act applied to the Irish courts, they were unaffected by any of the repealing legislation. As a result the provisions of the Act are still law in the Republic of Ireland
, although they have been transferred several times. 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
. The Act is still valid in the Republic of Ireland
, however, and the rights continue to be exercised by the High Court of Ireland.
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.
The Act was influential as the first step towards a unified High Court, with equal abilities for both equity and common law branches. 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.
Hugh Cairns, 1st Earl Cairns
Hugh McCalmont Cairns, 1st Earl Cairns PC, QC was a British statesman who served as Lord Chancellor of the United Kingdom during the first two ministries of Benjamin Disraeli. He was one of the most prominent Conservative statesmen in the House of Lords during this period of Victorian politics...
, was an Act
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that allowed the English Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, the Irish Chancery
Irish Chancery
The Court of Chancery was a court which exercised equitable jurisdiction in Ireland until its abolition as part of the reform of the court system in 1877. It was the court in which the Lord Chancellor of Ireland presided. Its final sitting place was at the Four Courts in Dublin.-History:The...
and the Chancery Court of the County Palatine of Lancaster to award damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
, in addition to their previous function of awarding injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s and specific performance
Specific performance
Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential...
. The Act also made several procedural changes to the Chancery courts, most notably allowing them to call a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
, and allowed the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
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
Ernest Pollock, 1st Viscount Hanworth
Ernest Murray Pollock, 1st Viscount Hanworth KBE PC KC was a British Conservative Member of Parliament and Master of the Rolls.He was the MP for Warwick and Leamington from 1910 to 1923...
as "prophetic".
After the English Court of Chancery was dissolved by the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 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
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
.
Background
During the 19th century the higher courts were divided into two main types—courts of Common LawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, such as the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, and Courts of Equity such as the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
; 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
Specific performance
Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to award/ for awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential...
or injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s, only damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
, and courts of equity could only grant injunctions and orders of specific performance, not damages. 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, 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.
A Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
"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, and they recommended (among other things) that the chancery courts be given the power to order damages and use a jury.
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", and after passing through several committees was introduced to the House of Commons on 14 May 1858. The Act was piloted through Parliament by Sir Hugh Cairns
Hugh Cairns, 1st Earl Cairns
Hugh McCalmont Cairns, 1st Earl Cairns PC, QC was a British statesman who served as Lord Chancellor of the United Kingdom during the first two ministries of Benjamin Disraeli. He was one of the most prominent Conservative statesmen in the House of Lords during this period of Victorian politics...
(later Lord Cairns), the Solicitor General for England and Wales
Solicitor General for England and Wales
Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...
, and for this reason is commonly known as Lord Cairns' Act. It was passed by Parliament and came into force on 1 November 1858.
Provisions of the Act
The Act is relatively small, containing only 12 sections, including several sections on procedures. Section II of the act was the most central one, allowing the Courts of Chancery to award damagesDamages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
"in all cases in which [they] have jurisdiction to entertain an application for an injunction.. or specific performance". Although this section was repealed by, the general principles it set out are still valid law and are found in Section 50 of the Supreme Court Act 1981.
Section III of the Act introduced the right of the Chancery judges to call a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
to assess the amount of damages to be awarded and "any question of fact arising in a suit or proceeding". These juries were to consist of the same type of person and be due the same rights as any jury in a common
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
or criminal law
English criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
case, and the judge was allowed to impose on them any rules permissible in a common or criminal trial. Historically Chancery judges were loath to call juries, but the right existed for them to do so anyway.
Section IV gave the Chancery courts the same rights (in awarding damages and calling damages) as any other superior court allowed to do so. Section V reserved the right of the court to conduct a trial without a jury, and section VI allowed them to order a jury to assess damages in any other common law court, on Assize or in front of a High Sheriff
High Sheriff
A high sheriff is, or was, a law enforcement officer in the United Kingdom, Canada and the United States.In England and Wales, the office is unpaid and partly ceremonial, appointed by the Crown through a warrant from the Privy Council. In Cornwall, the High Sheriff is appointed by the Duke of...
.
Sections VII onwards were procedural changes. Section VII itself allowed the court to order any party to provide all evidence to the other party without exception, with any party who refused to do so paying costs to the other side unless the judge said the refusal was reasonable. Section VIII extended the Act to the Irish Chancery, and Section IX allowed the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to amend the Irish Chancery practice regulations. Section X extended the Act to the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
and the Chancery Court of the County Palatine of Lancaster, and Section XI allowed the Lord Chancellor to amend practice regulations of these courts. These amendments were to be placed before Parliament, and would come into force within 36 days.
Repeal
After the Supreme Court of Judicature Act 1873Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
dissolved the English Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
and unified the common and equity courts into the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, 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. 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.
Although the Act applied to the Irish courts, they were unaffected by any of the repealing legislation. As a result the provisions of the Act are still law in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, although they have been transferred several times. The Irish Chancery was merged into the High Court of Ireland by the Supreme Court of Judicature Act (Ireland) 1877
Supreme Court of Judicature Act (Ireland) 1877
The Supreme Court of Judicature Act 1877 was an Act of the Parliament of the United Kingdom that brought about a major reorganisation of the senior courts in Ireland.-Provisions:...
, but the same Act also transferred the rights under the 1858 Act to the new High Court. The Government of Ireland Act 1920
Government of Ireland Act 1920
The Government of Ireland Act 1920 was the Act of the Parliament of the United Kingdom which partitioned Ireland. The Act's long title was "An Act to provide for the better government of Ireland"; it is also known as the Fourth Home Rule Bill or as the Fourth Home Rule Act.The Act was intended...
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
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. The Act is still valid in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, however, and the rights continue to be exercised by the High Court of Ireland.
In many British Dominions local statute was passed to bring the 1858 Act into local law, and it is still valid in Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
under the Courts of Justice Act 1984 and British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
under the Supreme Court Act 1986.
The Act was influential as the first step towards a unified High Court, with equal abilities for both equity and common law branches. 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.