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Equity and Trusts > Equitable Remedies > Flashcards

Equitable Remedies Flashcards

1
Q

Specific performance

A

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

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2
Q

SP is only awarded where damages will not be adequate

A

Adderley v Dixon

Land - unique - SP available for either party

Pure personalty - SP generally not availabe

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3
Q

SP available for stocks and shares not available on the market

A

Dubcuff v Albrecht

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4
Q

SP available for articles of unusual beauty, rarity and distinction or of peculiar value to the claimant

A

A Ming vase - Falcke v Gray

Ornate door - Philips v Lamdin

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5
Q

Contracts for service - can losses be quantified if the service is not performed?

A

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

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6
Q

Specific performance will not be granter where performance requires constance supervision by the court

A

Co-operative Insurance v Argyll Stores - ongoing activity (keeping shop open during certain hours - SP not available)

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7
Q

Contract for personal services - employment

A

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

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8
Q

Contract for services - not employment

A

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
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9
Q

Court will not order an injunction for contract for services where it will have the same effect as SP

A

Page One Records v Britton

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10
Q

As SP cannot be awarded against a minor, he cannot obtain such an order himself - mutuality

A

Lumley v Ravenscroft

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11
Q

Clean hands - claimant must have performed or be willing to perform all his own obligations under the contract

A

Coatsworth v Johnson

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12
Q

No statutory limitation period for bringing an action for SP, but unreasonable delay will defeat a claim - delay defeats equity

A

Eads v Williams

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13
Q

SP may be refused if it would cause unnecessary hardship to one party or a third party

A

Patel v Ali

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14
Q

Injunction

A

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
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15
Q

An injunction will only be granted to protect a recognisable legal or equitable right

A

Day v Brownrigg (house name - no injunction)

Paton v Trustees of British Pregnancy Advisory Service - no injunction to prevent wife having abortion

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16
Q

Courts will only hear application for without notice injunction where case is overwhelming on the merits

A

Bates v Lord Hailsham

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17
Q

Damages may be awarded in lieu of injunction

A

s50 Senior Courts Act
Damages will not be adequate where the action is repeated or continuous or where loss is unquantifiable in monetary terms

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18
Q

Courts less ready to grant mandatory injunction

A

Wrotham Park Estate v Parkside Homes

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19
Q

It would be oppressive to order mandatory injunction to demolish house as claimant had stood by as the house was built

A

Jaggard v Sawyer

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20
Q

Freezing injunction and search orders

A
  • generally only granted by the High Court

- often granted at interim stage of proceedings, to secure claimant’s position before trial

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21
Q

Injunction - clean hands

A

Argyll v Agyll

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22
Q

Injunction - willing to perform

A

Measures v Measures

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23
Q

Injunction - delay

A

Bulmer v Bollinger

Shepherd Homes v Sandham

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24
Q

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

A

Bulmer v Bollinger

Shaw v Applegate - must be unconscionable to enforce legal rights

25
Q

Injunction - hardship

A

Maythorn v Palmer (to third party)

26
Q

Interim prohibitory injunctions

A

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
27
Q

Interim prohibitory injunctions - there must be a real question to be tried at trial - there is some prospect of success

A

Mothercare v Robson Brooks

28
Q

Interim prohibitory injunctions - balance of convenience

A
  • 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
29
Q

Status quo ante

A

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

30
Q

If Claimant delays his application, status quo ante may be the alleged wrong and injunction will be refused

A

Shepherd Homes v Sandham

31
Q

American Cyanamid guidelines do not apply where trial of action is unlikely

A

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)

32
Q

American Cyanamid guidelines do not apply in defamation and defendant sets up defence of justification (unless bound to fail)

A

Greene v Associated Newspapers

33
Q

American Cyanamid guidelines do not apply against public authorities exercising statutory powers

A

Smith v IKEA - applicant needs extremely strong case on merits

34
Q

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

A

Douglas v Hello

35
Q

American Cyanamid guidelines do not apply where it is a certain, plain and uncontested breach

A

Hubbard v Pitt

36
Q

Interim Mandatory Injunctions

A
  • 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’

37
Q

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

A

Sky Petroleum v VIP

38
Q

Interim injunction ordering grant of lease - distinguished Co-operative Insurance v Argyll as it was a single action, not a continuous activity

A

Capita Trust

39
Q

Search Orders

A

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

40
Q

Conditions for search order

A

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
41
Q

Real possibility or lack of may be inferred from the defendant’s conduct

A

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

42
Q

List must be made of any items removed and the defendant given an opportunity to check it

A

Colombia Pictures v Robinson

43
Q

If premises likely to be occupied by a woman alone, one member of the party should be a woman

A

Universal v Hibben

44
Q

Search order should not require a defendant to disclose information which will incriminate him

A

Rank Fil v Video Information Centre

45
Q

Search orders are compatible with Art 8

A

Chappell v UK

46
Q

Freezing Injunctions

A

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
47
Q

Criteria for freezing injunction

A

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

48
Q

Need a good arguable case for risk of dissipation

A

Customs and Excise v Anchor Foods

49
Q

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

A

Ninemia Corporation v Trave

50
Q

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

A

Third Chandris v Unimarine

51
Q

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

A

Fourie v Le Roux

52
Q

Order may freeze assets outside England and Wales without appropriate provision respecting the territorial sovereignty of foreign States

A

Derby v Weldon

53
Q

Can issue freezing injunction anywhere in world but need compliance from foreign country

A

Re BCCI SA (no9)

54
Q

Cannot order a freezing order where there is no substantive claim to the jurisdiction

A

The Siskina

55
Q

Will may be rectified where it fails to carry out testator’s intentions due to clerical error or failure to understand his instructions

A

Pengelly v Pengelly

56
Q

Voluntary trust can be rectified

A

Re Butlin’s ST

57
Q

Remedy of account may be used to require trustee to account for any incidental profit he has made in breach of fiduciary duties

A

Williams v Barton

58
Q

Remedy of account may be used to require an agent to account for a bribe/secret profit

A

AG for HK v Reid

59
Q

Remedy of account may be used to require a person to account for profits of unauthorised use of information in breach of confience

A

HM AG v Guardian Newspapers; HM AG v Blake

Equity and Trusts (10 decks)

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