Equitable Remedies Flashcards
What are the 6 categories of equitable remedy?
Specific performance IMI IPI Freezing order Search order Account of profits
What are the 4 types of injunctive relief?
Prohibitory injunction Interim prohibitory injunction Mandatory injunction Interim mandatory injunction * Some of these are available with and without notice
Will an contract for land be obligated under SP?
Yes as unique - Verral v Great Yarmouth
When will a contract for property be enforced with SP?
- If the property is unique
- If damages would not suffice
Pusey v Pusey
King Canute’s hunting horn is unique
Falcke v Gray
Ming vase judged to be unique as item of ‘unusual beauty, rareity and distinction’ so would be very hard to obtain elsewhere
Cohen v Roche
SP for Hepplewhite Chairs not obligated as classed as ‘an ordinary article of commerce’
Behnke v Bede
SP possible if the item has a ‘unique value to the claimant’ - In this case a bespoke ship
Sky Petroleum v VIP
Due to OPEC oil crisis property could not be obtained elsewhere so damages were insufficient to remedy breach
Neville v Wilson
Stocks and shares not on market were judged a personalty so SP was available
When will the court use SP to enforce a contract for services?
- Verral v Great Yarmouth;
- Where damages unquantifiable so inappropriate
- Where no alternative service so judged to be unique
Co-op v Argyll Stores
SP will not be granted where it would require constant supervision as the court would be required to provide a series of indefinite quasi-criminal rulings for contempt of court
- This would overburden the courts
- lord hoffman
Ryan v mutual tontine
A contract will not be enforced where it would require ‘constant supervision’
- if it is a one off contract the courts may enforce it
De Francesco v Barnum (in relation to contract for services)
Equity will not enforce contracts where it would be akin to enforcing a contract for slavery. However whether this is a contract for slavery is a question of nature of the services and payment - LJ Fry
CH Giles v Morris
Equity will not enforce performance where it would result in imperfections in performance. Equity will not act in vain. Megarry J provided the example of a singer. it would be hard to enforce such a contract as the singer could perform very poorly and this would still be performance of the contract
Will equity enforce a contract for employment?
No - S236 TULRA 1992
De Francesco v Barnum - Equity will not enforce a contract for slavery
What general defences are there to a grant of SP?
Mutuality - Lumley v Ravenscroft
Clean hands - Coatsworth v Johnson
Delay - Eads v Williams
Hardship - Patel v Ali
Quia timet
A pre-emptive injunction for where a right will be infringed imminently
General defences to the award of an injunction
Claimants conduct - Measures v Measures
Delay - Bulmer v Bolinger
Acquiescence - Shaw v Applegate
Hardship - Maythorn v Palmer (hardship to 3rd party)
Prohibitory injunction
- Awarded at the discretion of the court
- Will not be awarded i f damages are adequate
- Will not be awarded if breaches an equitable maxim
Mandatory injunction
- Awarded at discretion of the court
- Rare remedy as most IMI are better awarded as SP of an obligation under a contract
How is an IPI awarded?
American Cyanamide guidelines;
- Claim is not frivolous or vexatious
- Where does the balance of convenience lie? (damages/undertaking/ability to pay)
- If no balance of convenience then maintain the status quo
Morning Star v Express Newspapers
Frivolous or vexatious claim will be rejected
Other factors the court will consider in awarding an IPI;
- Loss of employment - Fellows and Son v Fisher
- Damage to goodwill of a business - Associated Newspapers v Insert Media
- Closing down of a business - Potters-Ballotini v Weston-Baker
- Preserving a substantial investment - Catnic v Stressline
Garden Cottage v MMB
Maintenance of status quo will generally mean undoing the last act
Cambridge Nutrition v BBC
If a trial is unlikely to ever occur then the courts will not award an IPI
How is an IMI awarded?
Shepherd Hoems v Sandham (as approved in Locabali v Agroexport)
- Requires high degree of assurance that at trial a mandatory injunction will be granted
- SP can only be granted at full trial, so in some ways can be regarded as a pre-emptive SP where it is very likely SP will be granted
Page One Records v Britton
The Troggs (band) terminated a contract of employment and employee sought an injunction to prevent termination. Not granted as to grant injunction would be similar to granting SP, which is not possible for contracts of employment. Therefore injunction will not be granted where SP would not be granted
Evans v BBC
IMI granted as SP would be too slow. SP likely as contract for service from BBC was judge to be unique in a similar vein to Verral v Great Yarmouth
Capita Trust v Chatham Maritime
IMI granted requiring acceptance of M & S tenancy as this was contracted and would be granted under SP as it is land so unique
How is a search order granted?
Anton Pillier v Manufacturing Proecsses
- Extremely strong prima facie case
- Very serious damage
- Clear evidence of incriminating documents in possession and real possibility of destruction
Lock v Beeswick
- Evidence of defendant’s dishonesty and fraud can be used as tangential evidence that they will destroy/dissipate the asset.
- In the actual case search order overturned as appelants not judged to be ‘fly by night pirates’ but people with jobs and mortgages
- Hoffman - there is a need for a proportionality consideration of the perceived threat and the potential measures
Chappell v UK
Search orders not an art 8 infringement as there are appropriate safeguards in place. The defendant can also challenge the search order
EMI v Pandit
Search order granted
How is a freezing order granted?
Derby v Wheldon
- Good arguable case
- Grounds for believing D has the relevant assets
- Risk of dissipation
Ninemia
- Not a calculation of 51% probability of success
- The case must be more than capable of serious argument
Re BCCI
Can pursue assets which are not in the jurisdiction (however pursue assets in the jurisdiction first)
Courts will not grant a freezing order in other jurisdictions if it would be unduly oppressive
Customs v Anchorq
Must be a good arguable case that the items will be dissipated
Derby v Wheldon
Objective assessment of risk of dissipation
JSC BTA Bank v Ablyazov
Risk of dissipation can be judged from evidence of misappropriation
Law Society v Shank
- Third parties must be informed of a freezing order
- Violation of a freezing order will be a contempt of court
LTD v A-Z and AA-LL
Living expenses granted udner freezing order
Third Chandis
Claimant should disclose all material matters in a ‘without notice’ application. State points which could be made agaisnt application
- Debt dodger is seen as a dishonest person
Fourie v Le Roux
Freezing order without notice granted if substantive proceedings have been issued
Boardman v Phipps
Profits from use of property may be recovered
Mothercare v Robson
For an IPI the case must have some chance of success
AG v Guardian
IPI likely to be granted to prevent publication, as injunction not possible once published. Equity will not act in vain
Columbia Pictures v Robinson
Only allowed to take specific items in search order
Adderly v Dixon
Specific performance is only granted where damages are inadequate
Day v Brownrigg
Equitable or legal right must be infringed
Argyll v Argyll
Breach of confidence as basis for equitable remedy
Defrancesco v Barnum (2)
Contract not enforced as;
- length of contract - 7 years
- subjects of contract not allowed to marry
- or enter into employment without consent
Giles & Morris (slavery)
Court will not enforce contract for slavery
- Slavery judged from day to day impact on the person
- factors;
Proximity
Control
Relationship breakdown
Length of contract
