Equitable Remedies Flashcards
Day v Brownrigg [1878]
Equitable Remedies
- Remedies are sought to support a course of action
- e.g. sue for breach of contract, not for specific performance
Robinson v Harman [1848]
Specific Performance
Equitable Remedies
- At common law your “remedy of right” is damages
Adderley v Dixon [1824]
Specific Performance
Equitable Remedies
- Damages must not be adequate, in order to receive an equitable remedy
Specific Performance
Equitable Remedies
- Physical ‘court order compelling D to perform the positive obligations under a contract’; for negative obligations, specific performance is not available
- Must have a valid contract
- Only available after a full trial has assessed both sides of the argument and decided one party is liable.
- Means it can take a long time so have to consider whether you have time to wait so may want to consider interim orders.
- Failure to comply with specific performance is a contempt of court, punishable by imprisonment or fine.
Verrall v Great Yarmouth BC [1981]
Specific Performance
Land
Equitable Remedies
- Presumption is that specific performance will be ordered on a contract if it concerns land
Quality of Uniqueness
Specific Performance
Chattels
Equitable Remedies
- – have to demonstrate the chattel is irreplaceable so that damages won’t be adequate in order to get specific performance
Duncuft v Albrecht [1841]
Specific Performance
Chattels
Equitable Remedies
- Specific performance may be granted for stocks and shares not available on the market.
Pusey v Pusey [1684]
Specific Performance
Chattels
Equitable Remedies
- Piece of property (hunting horn) that was reputedly owned by King Cnut – specific performance granted because completely unique
Falcke v Gray [1859]
Specific Performance
Chattels
Equitable Remedies
- Court will not provide specific performance if you do not come to equity with clean hands
- Asked landlady if he could buy Ming dynasty vases (without her knowing their worth); sold for £30; landlady found out and cancelled contract.
- Court found they were completely unique and couldn’t be found elsewhere.
- Court did not provide specific performance as he had not come to equity with clean hands as he deceived landlady.
Cohen v Roche [1927]
Specific Performance
Chattels
Equitable Remedies
Where the chattel just represents profits to the claimant, damages will be sufficient and specific performance will not be granted.
- – Auction house reneged on contract for chairs; demanded specific performance; court said the chairs were ordinary items of commerce, even though they were rare. Buyer owned his own antique store so the chairs represented nothing to him, but profit, and so court said that could be compensated by damages.
Behnke v Bede Shipping Co Ltd [1927]
Specific Performance
Chattels
Equitable Remedies
Where a chattel is of peculiar and practically unique value to the claimant specific performance will be granted.
Buyers wanted to buy an old ship with modern boilers and engines; could be registered with the German shipping registry, but was quite low cost.
Sellers kept the ship in breach of contract. Buyers sued them for breach of contract and specific performance
Sky Petroleum Ltd v VIP Petroleum Ltd
Specific Performance
Chattels
Equitable Remedies
- Contract for petrol was cancelled by seller during a petrol strike; specific performance granted as couldn’t be found elsewhere and was crucial so specific performance granted
s. 236 Trade Union and Labour Relations (Consolidation) Act 1992
Specific Performance
Employment Contracts
Equitable Remedies
- It is impossible to get specific performance for employment contracts where the employer is trying to enforce the contract against the employee.
De Francesco v Barnum [1890]
Specific Performance
Employment Contracts
Equitable Remedies
- Claimant with a number of employees including 2 girls who were well below age of 18.
- Both girls were dancers and he employed them to perform in particular shows. Also lived with him amongst other employees.
- Had to perform 6 days a week, couldn’t live or be employed anywhere else, couldn’t marry without his permission so essentially he owned these 2 girls.
- The girls found employment with PT Barnum.
- Di Francesco sued him because they had breach employment contract.
- CoA said it was contract akin to slavery and wouldn’t enforce it against the 2 girls. They were also below the age of majority so couldn’t sue him, but he could sue them so there was no mutuality in contract.
- Demonstrates why court don’t enforce specific performance for this sort of contract
Service Contracts
Specific Performance
Services
Equitable Remedies
- Can get specific performance for service contract, but is quite difficult and equitable principles usually prevent enforcement. Reasons for refusal are:
- Would require constant supervision
- Would be against public policy - De Francesco v Barnum
- Would lead to imperfections in performance
Giles & Co Ltd v Morris [1972]
Imperfections in Performance and Subjectivity
Services
Specific Performance
Equitable Remedies
- Court will not award specific performance if cannot guarantee quality of service provided so if you have a subjective performance, court very unlikely to award it as they can’t guarantee you will get what you want.
- Here, example was of an opera singer – if performed poorly, could be down to any number of reasons – stress because poor performance could lead to prison, could be an off night, bad acoustics at the venue etc
Verrall v Great Yarmouth BC
Is the service irreplaceable?
Services
Specific Performance
Equitable Remedies
Specific performance will be granted where there is no other option to the service offered
- National Front contracted with Conservative council of Great Yarmouth to rent out a pavilion to hold their party conference. Labour party were elected in place of Conservatives and cancelled contract. NF couldn’t find anywhere else (as nobody wanted them) and so they had no choice but to sue the council for specific performance.
- Denning awarded specific performance as there was no other option, they were a registered, legitimate political party so had to maintain political freedoms.
Ryan v Mutual Tontine Westminster Chambers Association [1893]
Is the service sufficiently well-defined?
Services
Specific Performance
Equitable Remedies
Court will refuse specific performance where the service contract is not sufficiently well-defined and where it would require constant supervision to enforce
- Block of flats in which is employed a concierge; lives in the building; seeks employment outside the building so he isn’t always present. Sue him for specific performance of his contract.
- Court refused because would require constant supervision, which is not possible.
- Definition was not clear as entailed the duties of a porter were not well-defined so hard to draft the order
Posner v Scott-Lewis [1987]
Is the service sufficiently well-defined?
Services
Specific Performance
Equitable Remedies
Court will grant specific performance where the service contract is sufficiently well-defined and easy to enforce
- Residents of the flat didn’t want to enforce the contract against the concierge, but wanted to enforce a clause in the contract that the landlord provided a constant porter. Easier to enforce because landlord just had to hire a porter so specific performance was granted.
Co-operative Insrance Society Ltd v Argyll Stores (Holdings) Ltd [1997]
Supervision
Services
Specific Performance
Equitable Remedies
Where defendant will suffer serious financial implications as a result of a specific performance order, unlikely to be granted.
- Appeal against a CoA decision requiring store in shopping centre to stay open as it attracted other tenants was allowed as the store was closed because they were losing money.
- Problem was also that the court would have to give an indefinite series of rulings to ensure the order was carried out.
Injunction
Equitable Remedies
- ‘Court order compelling D to undertake an act or to prevent D from carrying out an act’
- Non-complicance or a breach is contempt of court and as an injunction acts in personam is punishable by imprisonment or fine
- Discretionary – bars to equity apply e.g. clean hands.
- Injunctions are only available where common law remedies are inadequate.
- Damages are not adequate where the action complained of is continuous or the applicant would suffer loss unquantifiable in monetary terms.
Types of Injunction
Equitable Remedies
- Mandatory – ordering something to be done or undone
- Prohibitory – restraining a person from doing something
- Injunctions may be granted at different stages of legal proceedings and may ensure for different lengths of time
- Final – where court makes an order for injunction at trial – order finally settles a dispute between 2 parties
- Interim – issued prior to trial taking place and effective until trial or a date specified in the order
- With Notice – when party made aware the other party is seeking injunction and can provide evidence
- Without Notice – other party only notified once it has been ordered
Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974]
Injunctions
Equitable Remedies
Courts are less ready to grant mandatory injunctions
Interim Injunctions
Equitable Remedies
- holding the ring’ – keep situation as it is so a full trial can decide the matter
- Civil procedure – justice between the parties – trying to balance damage done against the claimant if injunction isn’t granted with detriment caused to defendant if injunction is granted
- Risk of infringing D’s rights
- Balance between ‘on the one hand, the need to reduce the risk of harm to lawful rights pending litigation and, on the other … the imperative of impartiality which argues for non-interference prior to final judgment.’ (Zuckerman, (1993) 56 MLR 325, 326)
American Cyanamid Co v Ethicon Ltd [1975]
Guidelines
Interim Prohibitory Injunctions
Equitable Remedies
- Not frivolous / vexatious – there must be a serious question to be tried
- Does the Balance of Convenience lie in favour of granting or refusing an interim injunction?
- Status quo ante
Morning Star v Express Newpapers [1979]
American Cyanamid” Guidelines
Not frivolous / vexatious
Interim Prohibitory Injunctions
Equitable Remedies
Not frivolous / vexatious – there must be a serious question to be tried
Express newspapers published a tabloid newspaper. Morning Star was a broadsheet; Morning Star sued Express newspapers saying that readers of Morning Star were getting confused.
Court dismissed this as “only a moron in a hurry would mistake this”
Mothercare v Robson Books [1975]
American Cyanamid” Guidelines
Not frivolous / vexatious
Interim Prohibitory Injunctions
Equitable Remedies
There must be some prospect of success for an interim prohibitory injunction to be granted
Mothercare v Robson Books [1975]
“American Cyanamid” Guidelines
Balance of Convenience
Interim Prohibitory Injunctions
Equitable Remedies
Court consider:
- IPI refused, but C wins at trial – could C be compensated for pre-trial losses + can D pay?
- How would the claimant suffer between now and the completion of the trial? Would damages be adequate remedy? Can the defendant pay?
- IPI granted, but D wins at trial – could D be compensated for pre-trial losses + can C pay?
- How would the defendant suffer between now and the completion of the trial? Would damages be adequate remedy? Would the claimant be able to cover these losses?
Fellowes and Son v Fisher [1976]
“American Cyanamid” Guidelines
Balance of Convenience
Interim Prohibitory Injunctions
Equitable Remedies
Court will not grant an interim prohibitory injunction if it will prevent the defendant from working
Solicitor left employment with the claimant, but had a clause which said he couldn’t take employment for a number of years within a certain geographical area.
He did do so and the claimant sought an injunction.
Associated Newspapers plc v Inser Media Ltd [1991]
“American Cyanamid” Guidelines
Balance of Convenience
Interim Prohibitory Injunctions
Equitable Remedies
Court likely to grant an injunction where detrimental to reputation of the claimant not to
- Defendants produced leaflets inserted into magazines/newspapers published by claimant.
- Nature of leaflets changed over time and claimant sought an injunction to prevent leaflets as was very detrimental to reputation (leaflets associated with newspapers). Court accepted and claimant received injunction.
Potters-Ballotini Ltd v Weston Baker [1977]
“American Cyanamid” Guidelines
Balance of Convenience
Interim Prohibitory Injunctions
Equitable Remedies
Court unlikely to grant an injunction where it would be very detrimental to the defendant and his business
- Defendants were former employees of claimant and set up a rival business to claimant.
- Claimant sought injunction to prevent them running this business as argued had stolen confidential information.
- Court declined as would be very detrimental to the defendant – have to lay off employees, couldn’t set up in the market, loss of revenue etc
Catnic Components Ltd v Stressline Ltd [1976]
“American Cyanamid” Guidelines
Balance of Convenience
Interim Prohibitory Injunctions
Equitable Remedies
Court will look at comparative size of companies when considering whether to grant the injunction
- Claimant sought injunction claiming defendants using an unauthorised process they had stolen from them. Claimant v large and defendants v small so injunction was rejected as no real harm could be done because of comparable size of companies.
Garden Cottage Foods Ltd v Milk Marketing Board [1948]
“American Cyanamid” Guidelines
Status Quo Ante
Interim Prohibitory Injunctions
Equitable Remedies
- Status quo ante is the ‘state of affairs before the last change’
- Usually favours the claimant
- Where the balance of power does not clearly favour one party or another, the deciding factor will be the preservation of the status quo ante.
Shepherd Homes Ltd v Sandham [1970]
“American Cyanamid” Guidelines
Status Quo Ante
Interim Prohibitory Injunctions
Equitable Remedies
Pposition may alter if the claimant delays the application as then the last state of affairs would actually be the alleged wrong and the status quo would favour letting the wrong continue and refusing the injunction.
Shepherd Homes Ltd v Sandham [1970]
Interim Mandatory Injunctions
Equitable Remedies
- There must be a ‘high degree of assurance that at trial it will appear the injunction was rightly granted’
- Court won’t have to rescind the injunction at trial
- Housing development with open gardens; residents found that sheep were coming down from the hills and eating their gardens so had erected fences. Shepherd Homes sued as was breach of contract and sought an injuction; court refused as would have been very expensive and Shepherd Homes were aware the fences had been being constructed for a while
- Approved in Locabail International Finance Ltd v Agroexport [1986]
Siskina v Distos Compania Naveira SA [1979]
Freezing Orders
Equitable Remedies
- ‘ancillary to a substantive pecuniary claim for debt or damages; it is designed to prevent the judgment against a … defendant for a sum of money being a mere brutum fulmen (harmless thunderbolt)’
- Interim Prohibitory Injunction
- Prevent assets – removal / dissipation before full trial
- Usually awarded prior to judgment
- May be awarded after judgment
What is an Asset?
Freezing Orders
Equitable Remedies
- Allen v Jambo Holdings Ltd [1980] 1 WLR 1252 (CA) - Aeroplanes
- The Rena K [1979] QB 377 - Ships
- Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara [1978] 1 QB 644 (CA) - Machinery
- CBS United Kingdom Ltd v Lambert [1983] Ch 37 (CA) - Jewellery, Objets d’art, choses in action
Derby & Co Ltd v Wheldon [1990]
Freezing Orders
Guidelines
Equitable Remedies
-
Guidelines for obtaining a ‘freezing order’ from Derby & Co Ltd v Wheldon [1990] :
1. Good Arguable case
2. Grounds for believing D has relevant assets
3. Risk of dissipation
Ninemia Maritime Corporation v Trave [1983]
Freezing Orders
Good Arguable Case
Guidelines
Equitable Remedies
- ‘more than barely capable of serious argument but not necessarily 50%+ chance of success’ – reasonable standard but not a high threshold
- Need to consider whether you are going to win case
Re BCCI (No 9)
Freezing Orders
Grounds for believing D has relevant assets
Guidelines
Equitable Remedies
UK Courts have right to issue injunctions worldwide, specifically freezing orders
Derby & Co Ltd v Wheldon [1990]
Freezing Orders
Risk of Dissipation
Guidelines
Equitable Remedies
- Have to convince court that defendant is not the type of person who would abide by order for damages; have to convince them of dishonesty etc
- Objective assessment – would a reasonable person think there is a risk of dissipation?
JSC BTA Bank v Ablyazov [2009]
Freezing Orders
Risk of Dissipation
Guidelines
Equitable Remedies
Evidence of misappropriation will indicate the defendant is dishonest
Re BCCI [1994]
Freezing Orders
Extra-territorial effect
Guidelines
Equitable Remedies
- Cannot get an extra-territorial injunction if ‘unduly oppressive’
- Outside the jurisdiction – have to demonstrate domestic assets are insufficient to pay you, if you win at trial
Derby & Co Ltd v Wheldon [1990]
Freezing Orders
Extra-territorial effect
Guidelines
Equitable Remedies
- C must show insufficient assets in jurisdiction
Z Ltd v A-Z and AA-LL [1982]
Freezing Orders
Undertaking
Guidelines
Equitable Remedies
Order should be served on Third parties acting for defendant as can sue them as well – informed
Search Orders
Equitable Remedies
-
Search order is an ‘order compelling D to permit C to enter premises under D’s control to’:
- (1) inspect documents or other articles (Yousif v Salama [1980] 1 WLR 1540 (CA))
- (2) take custody of documents or other articles (Crest Homes plc v Marks [1987] AC 829)
- Interim mandatory injunction
- “They stand, … at the extremity of the court’s jurisdiction.” (per Scott J in Bhimji v Chatwani [1991] 1 WLR 989, 1001)
- The most difficult of interim orders to procure
- Without notice
Colombia Picture Industries Inc v Robinson [1987]
Search Orders
Equitable Remedies
Search orders are characterised by secrecy – essence is surprise
Anton Piller KG v Manufacturing Processes Ltd
Guidelines
Search Orders
Equitable Remedies
Guidelines for obtaining a ‘search order’ :
- Extremely strong prima facie case (e.g. breach of patent, confidentiality) – no guidance on what this means but have to be confident will win at trial
- Damage, potential or actual, must be very serious for the applicant – have to prove to court if don’t secure it, will probably lose your case
- Must have Clear evidence D has incriminating documents in their possession AND there is a real possibility of destruction
- Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 (CA)) – need to prove bad character – defendant is type of person who is dishonest, disreputable, would destroy evidence
- ‘clear and compelling’ evidence
Safeguards
Search Orders
Equitable Remedies
- Can go no further than the minimum extent necessary to achieve the purpose for which it is granted;
- Detailed record of the materials should be made by the solicitor;
- No material should be taken unless it is clearly covered by the terms of the order;
- Between 09:30 and 17:30;
- Defendant should be present;
- If a female D alone, then should be a female solicitor.
Defendant’s Options
Search Orders
Equitable Remedies
- Obey the order
- Refuse to comply – contempt of court – liable to be fined/imprisoned
- Urgent application – order set aside
- Judge who made order
- Unsuccessful application – contempt of court - liable to be fined/imprisoned
Lock International Plc v Beswick [1989]
Search Orders and Human Rights
Search Orders
Equitable Remedies
- ‘they potentially involve serious inroads on principles which bulk large in rhetoric of English liberty, such as the presumption of innocence, the right not to be condemned unheard, protection against arbitrary searches and seizures, the sanctity of the home.’ (per Hoffmann J)
- Search order was granted but then rescinded on appeal
Chappell v UK [1989]
Search Orders and Human Rights
Search Orders
Equitable Remedies
Decided search orders don’t contravene human rights as safeguards were so stringent they were in proportion to protection offered by Art 8
Account of Profits
Equitable Remedies
- An account of profits is a personal remedy that entitles a claimant to recover, by way of payment, the profits received by the defendant as a result of their breach.
- Common law – make good loss
- Equity – restore the property / account for the profits:
- improperly received; or
- withheld property; or
- profits from use of property
- AG v Blake
- AG v Guardian Newspapers (No 2)
Williams v Greatex [1957]
Defences
Equitable Remedies
Delay (or, laches) – if delay too long, less likely to award you remedy you are seeking
Duchess of Argyll v Duke of Argyll [1967]
Defences
Equitable Remedies
-
Clean hands
- ‘reprehensible’ or ‘unfair’ conduct will not allows you to gain an equitable remedy
- tell all book following marriage breakdown; injunction was granted
Patel v Ali [1984]
Defences
Equitable Remedies
- Undue hardship
- contract for sale of land, contract broken, specific performance normally granted; defendant couldn’t speak English, had leg amputated, numerous operations, husband had left her so court decided she would suffer great hardship if removed from the land so didn’t allow specific performance.
