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