ABSTRACT
In 1954 Lord Evershed could safely state that in only one case since the Judicature Acts 1873-75, the Winter Garden Theatre,2 had the phrase ‘fusion of Law and Equity’3 been used in a House of Lords’ decision. More recently there has been a fundamental change in judicial rhetoric and references to the ‘fusion of law and equity’ have become almost commonplace. The most obvious example of this change is the deceptively simple statement by Lord Browne Wilkinson in Tinsley v Milligan that: ‘More than 100 years has elapsed since law and equity became fused.’4 That case involved a claim by the defendant to an equitable share in property under a resulting trust; a decision from within equity’s discursive heartlands. Similar pronouncements may be found, however, within the ‘new territories’. Hobhouse J, considering a dispute between a bank and a local authority which had been involved in an ultra vires swaps transaction, declares that: ‘Since the Judicature Acts in the last century the systems of law and equity have been fused and must now be regarded as a single system.’5 Both statements are examples of how law operates as an authoritative discourse, in that ‘fusion’ is presented as a self-evident truth requiring no further justification.6
