5. Remedies Flashcards
Dunlop Pneumatic v New Garage
(1) Use of words ‘penalty’ or ‘liquidated damages’ is not conclusive
(2) Essence of penalty is payment stipulated as in terrorem (to intimidate offending party); the essence of liquidated damages is genuine pre-assessment of loss
(3) The issue is one of each particular contract, judged at the time of making the contract, and not at the time of the breach – test includes whether sum is extravagant compared with loss
Robinson v Harman
Unliquidiated damages compensatory in nature
The Golden Victory
Aim is neither to punish nor to enrich
Birse Construction v Eastern Telegraph
Cost of cure is usual way of calculating expectation interest for building contracts
McGlinn v Waltham
If purely aesthetic, only nominal damages will be awarded
Ruxley Electronics v Forsyth
Loss of amenity
Regus v Epcot
‘Unusual, if not impossible’ for damages to be awarded for loss of amenity in a commercial setting
Anglia Television v Reed
C has unfettered choice in electing which measure to claim
But here expectation interest regarding film that had to be abandoned after star pulled out too vague, so must turn to reliance
McRae v Commonwealth Disposals Commission
Speculative nature of salvage expedition made it impossible for Cs to quantify their expectations with any degree of precision, so necessary to turn to reliance interest
C and P Haulage v Middleton
It will only be possible for C to claim reliance interest if contract would have enabled him to recoup expenses had it been properly performed
Attorney-General v Blake
Restitution interest allowed where C had a legitimate interest in preventing D’s profit-making activity and, hence, in depriving him of his profit
Esso Petroleum v Niad
Liberal approach to restitutionary interest
The ‘Sine Nomine’
Pushes back against restitutionary interest - not available for deliberate breach
Addis v Gramophone Co
Court refuses to award damages for mental distress
Jarvis v Swan
Court awards damages for mental distress where whole purpose of contract is provision of pleasure, relaxation and peace of mind
Farley v Skinner (No 2)
HL allows damages for non-pecuniary loss, since major object (though not whole purpose) of contract is to provide pleasure, relaxation and peace of mind
Malik v Bank of Credit and Commerce International
Damages for loss of reputation allowed
Chaplin v Hicks
Damages for loss of opportunity allowed - lost chance must be quantifiable + there was a genuine chance that opportunity might have come to fruition
Galoo v Bright Grahame Murray
Broad, ‘common sense approach’ to determining causal link - D’s breach should be a ‘dominant’ and ‘effective’ cause of the loss
Novus Steamship v A/N
In terms of a novus actus, if the intervening event was ‘likely to happen’, it will generally not be held to break the chain of causation
Hadley v Baxendale
Innocent party should receive damages such as may
o (1) Fairly and reasonably be considered either arising naturally (i.e. according to the usual course of things) from the breach, or
o (2) Reasonably be supposed to have been in contemplation of both parties, at time they made the contract, as probable result of breach
Jackson v Royal Bank of Scotland
What was in the contemplation (or knowledge) of the parties was to be judged at the time of contracting, not at the time of the breach
The Heron II
‘Reasonable contemplation’ test requires higher degree of likelihood than ‘reasonable foreseeability’ test (The Wagon Mound)
Balfour Beatty Construction v Scottish Power
Loss suffered when power was cut for 30 mins, causing concrete being poured to harden, was too remote – SP could not be expected to know technical details of concrete construction
British Westinghouse v Underground Electric Rail
Mitigation- innocent party should take ‘reasonable steps’
Payzu v Saunders
Reasonable steps to mitigate may include accepting performance offered by D under a new contract even when that performance amounts to a breach of the original contract
White and Carter v McGregor
Duty to mitigate does not preclude party from going to expense of performing his side of contract after other party has wrongfully repudiated contract
Alaskan Trader
C can only perform his side of contract if he has legitimate interest in doing so
Hounslow LBC v Twickenham Garden Developments
C can only perform his side of contract if he is able to perform without the co-operation of the other contracting party
Vesta v Butcher
Contributory negligence only applies where D’s liability in contract is same as his liability in tort of negligence which arises independently of the contract
Dies v British and International Mining and Finance
Deposit paid by party that then breaches contract by refusing to accept delivery recoverable (rare)
Adderley v Dixon
Specific performance will never be granted where damages of a liquidated demand is appropriate and adequate
Coatsworth v Johnson
The court will take into account the conduct of P, for he who comes to equity must come with clean hands
Eads v Williams
The action must be brought with reasonable promptness
Patel v Ali
Specific performance will not be awarded where it would cause undue hardship on D
De Francesco v Barnum
Specific performance will not be awarded for breach of a contract of personal services, e.g. contracts of employment
Co-operative Insurance Society v Argyll Stores
Specific performance will not be awarded where constant supervision of the court would be required – thus building contracts are generally excluded
Evening Standard v Henderson
Newspaper company was granted an interlocutory injunction to restrain employee production manager from working for rival newspaper during his contractual notice period
