Equitable Remedies Flashcards
Specific performance
An order requiring a party to a contract to carry out his positive obligations under a contract
a remedy in personam; only awarded at full trial
Failure to comply with order for SP is contempt of court
SP is only awarded where damages will not be adequate
Adderley v Dixon
Land - unique - SP available for either party
Pure personalty - SP generally not availabe
SP available for stocks and shares not available on the market
Dubcuff v Albrecht
SP available for articles of unusual beauty, rarity and distinction or of peculiar value to the claimant
A Ming vase - Falcke v Gray
Ornate door - Philips v Lamdin
Contracts for service - can losses be quantified if the service is not performed?
Verrall v Great Yarmouth Borough Council - National Front conference - political effects of cancelling conference could not be compensated by damages - SP available
Evans v BBC - interim mandatory injunction granted to compel defendants to screen party political broadcast
Specific performance will not be granter where performance requires constance supervision by the court
Co-operative Insurance v Argyll Stores - ongoing activity (keeping shop open during certain hours - SP not available)
Contract for personal services - employment
s236 Trade Union and Labour Relations (Consolidation) Act 1992 - no court shall compel an employee to do any work or attend any place of work
Contract for services - not employment
Equitable principles usually prevent enforcement:
- constant supervision - Ryan v Mutual Tontine
- against public policy - do not wish to turn contracts of service into contracts of slavery - De Francesco v Barnum
- it will lead to imperfections in performance - equity will not act in vain - CH Giles v Morris
Court will not order an injunction for contract for services where it will have the same effect as SP
Page One Records v Britton
As SP cannot be awarded against a minor, he cannot obtain such an order himself - mutuality
Lumley v Ravenscroft
Clean hands - claimant must have performed or be willing to perform all his own obligations under the contract
Coatsworth v Johnson
No statutory limitation period for bringing an action for SP, but unreasonable delay will defeat a claim - delay defeats equity
Eads v Williams
SP may be refused if it would cause unnecessary hardship to one party or a third party
Patel v Ali
Injunction
An order of the court requiring a person to refrain from doing a particular act, or, less commonly, to do a particular act.
- in respect to negative obligations; remedy in personam; High Court and County Court have power to order injunctive relief
An injunction will only be granted to protect a recognisable legal or equitable right
Day v Brownrigg (house name - no injunction)
Paton v Trustees of British Pregnancy Advisory Service - no injunction to prevent wife having abortion
Courts will only hear application for without notice injunction where case is overwhelming on the merits
Bates v Lord Hailsham
Damages may be awarded in lieu of injunction
s50 Senior Courts Act
Damages will not be adequate where the action is repeated or continuous or where loss is unquantifiable in monetary terms
Courts less ready to grant mandatory injunction
Wrotham Park Estate v Parkside Homes
It would be oppressive to order mandatory injunction to demolish house as claimant had stood by as the house was built
Jaggard v Sawyer
Freezing injunction and search orders
- generally only granted by the High Court
- often granted at interim stage of proceedings, to secure claimant’s position before trial
Injunction - clean hands
Argyll v Agyll
Injunction - willing to perform
Measures v Measures
Injunction - delay
Bulmer v Bollinger
Shepherd Homes v Sandham
Injunction - acquiescence - more than mere delay to suggest that claimant does not intend to rely on legal rights, on which the other party has acted to his prejudice
Bulmer v Bollinger
Shaw v Applegate - must be unconscionable to enforce legal rights
Injunction - hardship
Maythorn v Palmer (to third party)
Interim prohibitory injunctions
American Cyanamid v Ethicon:
- claimant’s case is not frivolous or vexatious and that there is a serious question to be tried
- does balance of convenience lie in favour of granting or refusing interim injunction?
- if neither favoured, preservation of the status quo ante
Interim prohibitory injunctions - there must be a real question to be tried at trial - there is some prospect of success
Mothercare v Robson Brooks
Interim prohibitory injunctions - balance of convenience
- adequacy of damage
- loss of employment (Fellows v Fisher)
- damage to goodwill of business (Associated Newspapers v Insert Media)
- closing down of a business (Potters-Bollotini v Weston Baker)
- preserving a substantial investment (Catnic v Stressline)
- Special factors
Status quo ante
State of affairs before the last change - generally favours the granting of an injunction as the last change is the commencement of the alleged wrong - Garden Cottage Foods v Milk Marketing Board
If Claimant delays his application, status quo ante may be the alleged wrong and injunction will be refused
Shepherd Homes v Sandham
American Cyanamid guidelines do not apply where trial of action is unlikely
Where granting/refusing injunction would effectivly dispose fully of the action in favour of whichever party is successful, an injunction will only be granted if the applicant’s case is overwhelming on the merits (Cambridge Nutrition v BBC)
American Cyanamid guidelines do not apply in defamation and defendant sets up defence of justification (unless bound to fail)
Greene v Associated Newspapers
American Cyanamid guidelines do not apply against public authorities exercising statutory powers
Smith v IKEA - applicant needs extremely strong case on merits
No publication should be restrained before trial which may affect Art 10, unless court is satisfied that the applicant is likely to establish that publication should not be allowed
Douglas v Hello
American Cyanamid guidelines do not apply where it is a certain, plain and uncontested breach
Hubbard v Pitt
Interim Mandatory Injunctions
- Stronger case needed
Locabail v Agroexport approved test in Shepherd Homes v Sandham - court must feel ‘a high degree of assurance that at trial it will appear that the injunction was rightly granted’
Negative injunction which amount to SP awarded as damages were not adequate because D likely to be put out of business if injunction not granted
Sky Petroleum v VIP
Interim injunction ordering grant of lease - distinguished Co-operative Insurance v Argyll as it was a single action, not a continuous activity
Capita Trust
Search Orders
Mandatory injunctions designed to ensure that the defendant does not destroy or remove evidence
Granting of search orders approved in principle by HL in Rank Film v Video Information Centre
Now governed by s7 Civil Procedure Act 1997 and Civil Procedure Rules 1998
Conditions for search order
Anton Pillar:
- an extremely strong prima facie case
- very serious damage, potential or actual, to the claimant
- clear evidence that the defendant has incriminating documents or items in his possession and a real possibility that he may destroy them
Real possibility or lack of may be inferred from the defendant’s conduct
Lock International v Beswick - former employees who had openly said they were entering into competition, upstanding characters with families and mortgages - unlikely to destroy evidence
List must be made of any items removed and the defendant given an opportunity to check it
Colombia Pictures v Robinson
If premises likely to be occupied by a woman alone, one member of the party should be a woman
Universal v Hibben
Search order should not require a defendant to disclose information which will incriminate him
Rank Fil v Video Information Centre
Search orders are compatible with Art 8
Chappell v UK
Freezing Injunctions
Prohibitory injunctions ordering the defendant not to dispose or of remove his assets from the jurisdiction before trial
- in personam - no effect on assets themselves
- first granted in Nippon Yusen Kaisha, followed by Mareva International Bulkcarriers
- now governed by s37 SCA 1981
- granted where it appears to the court to be just and convenient
Criteria for freezing injunction
Derby v Weldon:
Claimant must show that
- he has a good arguable case
- defendant has assets within the jurisdiction (or without where extra-territorial order is sought)
- there is a real risk that they will be removed or dissipated
Need a good arguable case for risk of dissipation
Customs and Excise v Anchor Foods
A good arguable case is one which is “more than barely capable of serious argument, but not necessarily one which the judge considers would have a better than 50% chance of success
Ninemia Corporation v Trave
Claimant must make full and frank disclosure of all material matters and in a without notice application he should fairly state all the points that could be made by the defendant against his claim
Third Chandris v Unimarine
Freezing injunctions applied for without notice will not normally be granted if the substantive proceedings have not yet been issued or an undertaking to issue proceedings provided with the injunction application
Fourie v Le Roux
Order may freeze assets outside England and Wales without appropriate provision respecting the territorial sovereignty of foreign States
Derby v Weldon
Can issue freezing injunction anywhere in world but need compliance from foreign country
Re BCCI SA (no9)
Cannot order a freezing order where there is no substantive claim to the jurisdiction
The Siskina
Will may be rectified where it fails to carry out testator’s intentions due to clerical error or failure to understand his instructions
Pengelly v Pengelly
Voluntary trust can be rectified
Re Butlin’s ST
Remedy of account may be used to require trustee to account for any incidental profit he has made in breach of fiduciary duties
Williams v Barton
Remedy of account may be used to require an agent to account for a bribe/secret profit
AG for HK v Reid
Remedy of account may be used to require a person to account for profits of unauthorised use of information in breach of confience
HM AG v Guardian Newspapers; HM AG v Blake
