Common Law and Equity

Burrows - "We do this at common law but that in equity" in the OJLS on fusion generally, just read the conclusion.

Millett's argument makes sense until you consider the opposing side. Of course fusion of law and equity is a good thing; we don't need two seperate legal systems.

But, in my view, tracing at law and tracing in equity are two entirely different things. They only share the name. The basis of tracing at law is restitution. The claimant is being sued personally. That is why a Change of Position defence is available at law; and that is why the remedies at law are rather weaker than those in Equity.

By contrast, tracing in Equity is a proprietary claim - you are recovering your property, not suing the defendant personally. This is why you have a fiduciary requirement. This is why there is no change of position defence. This is why the remedies are so strong. You are simply saying "you have my property. Give it back.". I would argue that this is an important difference and good reason to keep them seperate.

The cases widely support this proprietary analysis - though the rise of restitutionary thinking has had its mark - for instance subrogation is something that can only be explained by reference to a personal restitutionary analysis. Lord Millett does kind of support restitutionary analysis in his dicta. This is what is implied by his dictum in Foskett when he says that 1) law and equity should be fused, and 2) tracing is a process not a remedy (i.e. it simply leads you to a defendant against whom you take restitution). But the result in Foskett v McKeown supports the traditional proprietary analysis even if Lord Millett's reasoning doesn't: in Foskett the remedy was a proprietary onef tracing at law and equity are really the same thing, and if tracing is a process and not a remedy, then the remedy should be a personal restitutionary