Equitable Remedies

Question 1

Campbell v MGN Ltd [2004]

Answer 1

(Injunction)

A case like that really highlights that damages just won’t do. If the photos are out, the photos are out. Damages are really not a remedy in a case like that. So the injunction is the obvious route.

Question 2

Argyll v Argyll [1967]

Answer 2

(Injunction)

The Duke and Duchess of Argyll. It was a terrible scandal at the time. It was a divorce. The Duchess of Argyll had a few love letters floating around. It hit the headlines back in 1967 and there was a hope to restrain the publication of those love letters through an injunction.

Question 3

AG v Guardian Newspapers (1990)

Answer 3

(Injunction)

The spy catcher case. The individual had been a spy and he wanted to publish his memoirs, which is not something you would normally do when you have been a spy. The Atty. Gen. there was seeking to restrain publication of that information.

Question 4

Day v Brownrigg

Answer 4

(Injunction)

Somebody sought a copyright of a house name. The labour wanted to use the same name, which obviously was not a helpful thing to do. But the principle that we are interested in from the case is that you have to establish the right first. Could you have copyright protection over it? No, therefore no injunction permitted.

Question 5

Prohibitory Injunction

Answer 5

An injunction ordering something not to happen

Question 6

Mandatory Injunction

Answer 6

It demands or orders something to happen.

Question 7

Final Injunction

Answer 7

This is where you have fought your case, you’ve won your case, and the remedy concludes the case. So it is the final order of the case. So, in the old-fashioned language which you will find in some of the older cases it is referred to as a “perpetual” injunction.

Question 8

Anton Piller

Answer 8

The search order. It is something that is used at the beginning of an action, not at the end.

Was a case concerning the potential destruction of important documents. This is where it was first clarified and use was permitted, and some general principles were established. This is not only an interim injunction, but it is a “without notice” injunction – an ex parte injunction.

So, you go to the court and you say that there is a risk of confidential information being removed or destroyed. If it is removed or destroyed I will not be able to prove my case that they have been in breach of confidence. So I need to get this evidence to be able to bring my case and establish my case. If it goes, then I have no proof and no action. So I need the evidence in order to prove the case. Also, if they hear a whisper about it there is a risk that the information would be removed or destroyed.

Question 9

Hoffman – La Roche

Answer 9

(Discussed undertakings)

Case about valium. Discussed the nature of interim injunctions.

The problem is if you prevent publication or prevent use of this information, you may well be holding up someone’s business for a while. You may be damaging the interests of the person.

Hoffman La Roche talks about the possibility of undertakings in damages.

Typically in these situations is give an undertaking in damages.

Question 10

Harris v Moat Housing Group South

Answer 10

(Without notice injunction)

The landlords were the Moat Housing Group and the antisocial behaviour injunction was sought against the family. There were four children in the family; so, we have the mother and four children who were a fairly lively bunch and upset all the neighbours. The injunction that was sought actually evicted them from the property.
This was an “without notice injunction”.

Question 11

Quia Timet Injunctions

Answer 11

The sort of injunction where you think you fear something is going to happen to you.

Question 12

Graigola Merthyr C Ltd v Swansea Corporation [1929]

Answer 12

(Quia Timet Injunctions)

There was a reservoir that was being built and the fear was that it was about to be filled with water. The danger was the flooding of the coal mines. That was it – once you had flooded it the possibility of pumping out the water is not feasible. So practically nonrepairable damage would occur. This general impossibility of protecting the claimant’s interests….by creating this injunction.

Question 13

SoS v Meier 2009

Answer 13

(Final injunction)

A group of travelers and they were camping on some woodlands owned by the government. A possession injunction order was sought against them. They were camping on woodlands owned by the Forestry Commission, and the possession order that was sought was not only with respect to the campsite, but also several other sites. And what they were trying to do is to make sure that they didn’t move on to other areas; so if you move them out of one area they don’t just move on to other areas. There was a wider possession order and an injunction preventing them from moving on to other areas.

The possession order except the immediate site, but then an injunction order to prevent them from going elsewhere. And the SC said that the possession order was okay, but the wider injunction was not something that they would make an order for; they would be unable to enforce it and it was too wide.

Question 14

In Personam

Answer 14

Normally an English court will not grant a remedy in respect to land which is in a foreign jurisdiction where they are talking about rights in the land. However, equity operates against the person. So, in personam jurisdiction.

Question 15

R Griggs Group Ltd v Evans

Answer 15

This was where the land was in Mozambique and the court considered it quite acceptable to bring an injunction against Evans because it is an In Personam jurisdiction even though it was land in a foreign jurisdiction.

Question 16

Shelfer v City of London Electric Lighting Company [1895]

Damages in lieu of an injunction

Answer 16

Four steps to establishing damages in lieu of an injunction:

1) Small injury; not some major damage that has occurred.
2) Can be estimated in money.
3) Small amount, but adequate.
4) Grant of injunction oppressive.

Question 17

Regan v Paul

Answer 17

(Damages in lieu of an injunction)

About a building that had been put up, and the applicant for the injunction had tried to stop it at every stage; he had tried to stop this building from going up on the basis that it would block his light. He lost every stage; so the building goes up. He then goes to court and he is able to show that there has been a reduction in value of his property because of this loss of light, and that he does have the right to light. So, he had to show his right. Do you remember the right to light from your easements lectures? He has established it in this case in the court is asked to grant the injunction. Now, that means knocking down the building. That is really quite a significant thing to do. So, this went to the Court of Appeal and they went through the Shelfer guidelines (listed above), and it was a big issue because of the right to light; right to light cases are very difficult to establish that you have a right to light. There was a lot of discussion about whether this was the sort of case… The fourth point from Shelfer is what is really critical; it is difficult to establish, and it has been argued all the way through, and now we’ve established it, but the law gives up because nobody thought it would be appropriate to stop the builder on this point. So would it now be oppressive to enforce the injunction? The court said that all of the Shelfer guidelines still do apply – nothing was incorrect in the guidelines approach. In the circumstances, the court made a judgement call about how the people had behaved. The court didn’t really say that they had been deplorable or unconscionable conduct but what the court said was that the developers took a calculated risk – they were not unaware of the claim and they took a calculated risk. You can just see the calculation – we’ve got this land, it has got development potential, and we need a turnover to get that profit, and what is the chance of this guy winning his case? Right to light cases are quite difficult so the chance was quite small. So, the court said that they took a calculated risk and that they were going to have to pay for that. So the court did grant the injunction.

So it was a warning to developers here – be careful and make sure your calculation of the risk is sufficiently established.

Question 18

Lawrence v Fen Tigers

Answer 18

This is a noise nuisance case. This went to the Supreme Court and it was about recent car speedways and the noise they were producing. Currently, we should all be doing a tort module. When you come to do nuisance in tort you will find that the key area in nuisance law is noise. It is an aspect of our society – we used to live in small communities that were scattered around; but now we live in close proximity and buildings that perhaps don’t have adequate sound insulation, and noise is a big societal problem. Sometimes, people want to live in busy centres, so there is a lot a background in noise nuisance case is about reasonableness and what to expect. Is it reasonable for you to tolerate that noise? What is the benefit and burdens that are being suffered here? So, the neighbours here were not enjoying the speedway and they claimed that it was a noise nuisance. And then the question is whether these people would be granted an injunction to effectively either limit the business of the Speedway or close it altogether; or whether to be granted damages. Now, or damages going to do the job here? What is the Shelfer principle? Are the injuries more than the estimated – it must be a small amount but an adequate amount. Would a grant of an injunction be oppressive?

Question 19

American Cyanamid

Answer 19

1) A serious question to be tried.
2) Balance of convenience operates in favour of granting an injunction.
3) Are there ‘other special factors’ involved?
4) Is there a real prospect of trial?

The standard before that that you should also be aware of is Stratford v Lindley. Why would Judges want to conduct a mini trial motions like this?
Judges believe that they are omniscient usually. So they would be happy to conduct a mini trial, assuming that they will be able to decide the merits of the case about the actual evidence and things. That is what they are actually thinking. But it is also very efficient for their calendar – their docket. So the judge is each day scheduling what is going to happen in the court, so if they are able to decide the case on the mini trial and force the parties to settle or grant an interlocutory injunction motion, then they can cancel the whole trial on the backend which might take weeks. So they are very much in favour of having this.
That was the standard in Stratford. That is how you should remember it – that they could do these things. It looked like they were taking too much discretion running these mini trials. Then Cyanamid came in and cut it back and gave specific standards which are in the book in Chapter 6, which you can find and memorize.

Question 20

Columbia Picture Industries Inc. v Robinson [1987]

Answer 20

(Search order)

they were arguing there that an item was seized that was not covered by the order. Now, whatever they take must be covered by the order. You cannot take the order in use is as a phishing exercise to find things that are quite damning against the company.

Question 21

Universal Thermosensors Ltd v Hibben [1992]

Answer 21

(Search order)

They established some very practical guidelines about the way this could be carried out. So, normally you cannot go to residential premises unless there is clear evidence that the information might be there. There are cases where the solicitors and the clients have turned up at the house and there is a search going on. It could be very intimidating at the time. So, there are a number of practical rules set out by the judges in Universal Thermosensors about how you go about enforcing such an order.

Question 22

Mareva Compania Naviera SA

Answer 22

(Freezing order)

It was about a debt that was owing and due, and they thought that the defendant would dispose of the assets, which would defeat the judgement, and they asked the court to grant an interlocutory injunction to prevent that from being disposed of in advance. It was about a ship called the Mareva, and the charter of it… The charter fee had been paid.

Question 23

Barnum

Answer 23

The positive covenant in this case would apply to working for Francesco. So what is the rule today? Can you enforce a positive covenant? No. Can you enforce a negative covenant? Yes.

This case has both elements – both positive and negative. But this is really the positive covenant case, and the Betty Davis case is going to be the negative covenant case. That is how you should site them.

Question 24

Warner Bros. v Nelson (Betty Davis)

Answer 24

She was an actress. This was a servitude case again. Where was the initial contract signed, do you think? In California. Lets make a conjecture here: do you think you could get an enforcement of a positive covenant in California against an actress? Yeah, you probably can.

So she immediately comes to United Kingdom and signs with another agency/studio. So this is then, is not a positive covenant case, but a negative covenant case.

Why don’t they want to enforce the positive covenant? Would that be better? You can’t make somebody do something – so they give up on the positive covenant argument, knowing what the result will be. They pursue the negative covenant then.

But why then does Warner Bros. care… If they can’t enforce the positive covenant, why do they care about the negative one? Because they don’t want to be competing with the other studio: if she is making more money in working for the other studio she is benefiting them.

Warner Bros. won. The holding is on page 217. It says that the conclusion to be drawn from the authorities is that where a contract of personal services contains negative covenants enforcement of which will not amount either to a degree of specific performance… The court will enforce those negative covenants.

Did we just say that Bette Davis is going to remain idle? What is the equitable limit of the decision? She just can’t act. She could do something else. There is this minimum rule that sometimes comes up in equity.

Question 25

Troggs

Answer 25

If there was a fact pattern on the exam that talks about an agent and the relationship with a servitude contract and this is your case.

Question 26

Patel v Ali

Answer 26

Where a hardship would amount to an injustice then the court may be reluctant to award specific performance of the contract.

Question 27

Cohen v Roche

Answer 27

A sale for eight Hepplewhite chairs was not specifically enforceable. The chairs were not considered to be of any special value or interest.

Question 28

Behnke v Bede Shipping

Answer 28

A contract for the sale of a ship was enforced where the ship was of a peculiar and practically unique value to the plaintiff.

Question 29

Sale of Goods Act, Section 52

Answer 29

Enables the court to grant specific performance of a contract to deliver specific or ascertained goods where it is just to do so.

Question 30

Co-operative Insurance v Argyll

Answer 30

A case concerning the enforcement of a covenant in a commercial tenant’s lease to continue running the business. It would be oppressive to continue the store to operate at a loss.

Question 31

Wolverhampton v Emmons

Answer 31

Concerns a building contract. Are exceptions to the general principle because they involve the achievement of a result – a building, or specific repair.

1) The building working must be clearly defined.
2) Damages would be an inadequate remedy.
3) The defendant had possession of the land.

Question 32

Pusey v Pusey

Answer 32

Specific performance on goods because of their rarity.

Question 33

Posner v Scott Lewis

Answer 33

Specific performance of a similar covenant to employ a resident porter was awarded. The court held that if the obligation was sufficiently defined and the degree of supervision was not unacceptable then if the plaintiff would suffer grater hardship, the equitable remedy would be awarded.

Question 34

Ryan v Tontine

Answer 34

Court of Appeal refused to grant specific performance as it would be unable to supervise the performance of the covenant. It awarded damages instead.