Equitable remedies

Question 1

Two vies on the nature of Equitable remedies

Answer 1

Spry : Ethical quality

Worthington : Nothing particularly equitable about them

Question 2

Characteristics of Equitable remedies

Answer 2

Granted to protect legal/equitable rights

only available when common law remedies are inadequate

operates in personam

flexible jurisdiction

Question 3

Adequacy of damages

Answer 3

Money awards v Specific orders
Damages in lieu of injunctions :
S.50 Senior courts Act 1981

Question 4

Adequacy of damages Case :

Answer 4

Shelfer v City of London Electric Co 1895

Jurisdiction ‘ought not to be excercised in such cases except under very circumstances’

Injury to legal rights is small (injury is capable of being estimated in money

It would be oppressive to grant D to grant the injunction

Question 5

Adequacy of damages Case

Answer 5

Lawrence v Feb Tigers 2014:

reemergence of discretion (a discretion that shall not be fettered)

Shelfer principles are not to a test to be applied strictly but a series of factors
(even if all principle are present, the court is not precluded from granting an injunction

Question 6

Shelfer principle :

Answer 6

(1) If the injury to the plaintiff’s legal rights is small,

(2) And is one which is capable of being estimated in money,

(3) And is one which can be adequately compensated by a small money payment,

(4) And the case is one in which it would be oppressive to the defendant to grant an injunction: –

then damages in substitution for an injunction may be given.

Question 7

Injunction

Answer 7

An order by the court to make a party complete an action or to make them refrain from doing an action

Awarded to protect a legal right rather than to compensate for the breach of one

Question 8

Reason for injunction :

Answer 8

Money would be an inadequate remedy for breaching a persons right

Injunctions are a discretionary remedy which courts only grant if they feel it is just and equitable in circumstances to do so

Used to stop trespass, passing off, prevent illegal picketing and to freeze assets

Chapell v Times newspaper 1975
Conduct of the parties will also affect whether the judge will grant them an injunction

Question 9

Mareva Injunction :
(freezing orders)

Answer 9

where one party feels as they have a substantial case against the other they can apply for this only if they feel as though the other may move their assets.

Nippon Case 1975 (Lord Denning)
Plaintiff must prove that the assets are at risk

Question 10

Anton Piller Order :
(search order)

Answer 10

Anyon Piller KG v Manufactory Processes Ltd 1976

In order to prevent defendant from destroying anything that could be used by the plaintiff in the court to assist their trial

Granted without the other parties knowledge in order to maintain the element of suprise

requires defendant to allow the plaintiff to enter his premise and to collect what is relevant for evidence. If the defendant does not follow the order the. he shall be held in contempt of court

Question 11

Interlocutory Injunctions :
(temporary)

Answer 11

granted prior to a court hearing because plaintiff may suffer unrepairable damage if right is breach which cannot be compensated by money.

The plaintiff must prove to the judge that there is sufficient reason for them to believe that damage would be caused to them

Question 12

Interlocutory Injunction :
(3 stage test)

Answer 12

American Cynamid (3 stage test)
Also applied in
Campus oil v The minister for energy

3 stages :

1. if it is a serious and fair issue that will be tried you need not prove it’ll be a successful claim
2. set out of damages would be a suitable remedy. It must be impossible to quantify damages and must give an under taking which means in the event of an injunction not being granted they must compensate the other party for any losses
3. whether it is convient or not to grant the injunction. Need for plaintiff to be protected must overweigh against the right of the other party in order to grant the injunction

Question 13

Qui Timet Injunction :

Answer 13

Prevents an act before it has been committed it may be vested or could have been threatened

AG v Rathmines & Pembroke Join Hospital Board 1904
Burden of proof is higher than normal injunction

Question 14

Specific Performance :

Answer 14

when the court orders an individual to complete a specific task which is generally part of the contract.

Discretionary and only used when an individual cannot be compensated by money

If the do not complete the contract they will be held in contempt of court

Question 15

Recission:

Answer 15

Aims to return parties to the position they were in before they entered the contract
(mistake, misrepresentation, under influence, unconscionable transaction)

Solle v Butcher 1950

Question 16

Defences in Equity :

Answer 16

Delay = ‘latches’

Clean hands =
Tinsley v Milligan 1993 (claim cannot be tainted by illegality)
Patel v Mirza 2016 (more discretion as to the scope of defence )

Hardship = Patel v Ali 1984

Question 17

Injunction after 1873 : Enshrined in statute

Answer 17

Judicature act 1873 s.25(8)
an injunction may be granted…by an introductory order of the court in all cases in which it shall appear to the court to be just a convenient that’s such order should be made