EQUITY AND EQUITABLE REMEDIES Flashcards

Question

Burrows | Punishment

Answer 1

Punitive damages have only ever been awarded for torts We should put into effet the Law Commissions proposed reform, which will mean that the courts would have the power to award punitive damages for torts and equitable wrongs according to the same principled basic test of whether there was an outrageous and deliberate disregard of the claimant’s rights

Answer 2

Common law damages give relief only for an accrued wrong, albeit that the relief given can extent to future as well as past consequences Equitable damages can be awarded, albeit exceptionally, for anticipated, as well as accrued, wrongs It is clear that equitable damages can be awarded for common law, as well as equitable wrongs

Answer 3

There can be no equitable compensation where the loss in question would have been suffered even if there had been no breach of duty by the defendants solicitors

Answer 4

The suggestion that equitable compensation may sometimes have a special more restrictive restorative aim than compensatory damages should be resisted – it confuses the aim of the remedy with the application of that aim to different duties broken

Answer 5

The present law allows the award of punitive or exemplary damages (unless statutorily authorized) in two restricted categories only: where the wrong comprised oppressive, arbitrary or unconstitutional action by a servant of the government or was committed cynically to make a profit

Answer 6

Equitable remedies are subject to discretionary general defences that simply do not apply to common law remedies It is false to imagine that there are irreconcilable differences between common law and equitable defences A defence may operate to rule out specific performance or an injunction while not ruling out damages, whether equitable or common law

Answer 7

At common law, the normal form of relief is an award of damages Equity has a range of discretionary remedies; their availability depends upon the inadequacy of common law remedies, and they are governed by the doctrine that equity acts in personam

Answer 8

When the courts require performance of the contract A remedy in personam (as against the person); the obligation is owed by the contracting party Only available where the common law remedy of damages for breach of contract is inadequate

Answer 9

The claim was brought to enforce a covenant in a lease of a supermarket The owners of the shopping centre wanted to force the owners of the supermarket (who were running at a loss) to continue running the supermarket for a further 19 years (the time left on the lease) The court here declined specific performance because they said it would be oppressive on the defendant It is impractical for the courts to have to check the performance, it is a waste of court resources Settled practice of the court: the fact that the judge has discretion to give specific performance, it is still based of general practices of the courts

Answer 10

The principle upon which English judges exercise the discretion to grant specific performance are reasonably well settled and depend upon a number of considerations, mostly of a practical nature, which are of very general application” Albeit that it is still a matter of the judge’s discretion whether it is awarded, depending on the facts of the case

Answer 11

The minimum condition for an order of specific performance is that the innocent party should have a legitimate interest extending beyond pecuniary compensation for the breach” If damages would be adequate as a remedy for the breach, you are not entitled to specific performance

Answer 12

An uncle sells his coal business to his nephew for a certain amount per week to his uncle, and then was to pay his aunt after his uncle died (which he stopped). The aunt sought to sue for specific performance after her nephew stopped paying.

Answer 13

Normally, (because of privity of contract), a third party cannot enforce contractual terms. But, the aunt was able to claim as the administratrix of the estate, and thus obtained order for specific performance Because it was a contract for periodic payments that it was eligible for specific performance Lord Hodson - because there was an unconscionable breach of faith, the equitable remedy sought is apt

Answer 14

"Equity will grant specific performance when damages are inadequate to meet the justice of the case” Damages will be inadequate if the property is unique Generally used in contracts for the sale of land because each piece of land is regarded as unique

Answer 15

The sale of company shares can be specifically enforceable when those shares are not generally on the open market (i.e. with a private company)

Answer 16

Contracts for periodic payments (immunities or pensions) can be specifically enforceable

Answer 17

The parties had entered into a contract fixing the boundaries of Pennsylvania (claimant) and Maryland (defendant) Normally in land disputes, you bring it to the courts of where the land is. But here, the claimants brought the dispute in England (because Lord Baltimore was in England)

Answer 18

Because equity acts in personam, the courts could order him to comply with the contract. It does not matter that the land was elsewhere, it was about his contractual obligation and he was in England Equity’s jurisdiction is as against the person

Answer 19

An ongoing obligation - a contract to continue doing something (e.g. employment contracts)

Answer 20

Claimant’s conduct – “he who comes to a court of equity, he must do so with clean hands” Laches of delay: not limitation period Unnecessary hardship

Answer 21

Prohibitive or mandatory Perpetual (i.e. permanent, or final) or interim (i.e. interlocutory – between claim being lodged and trial)

Answer 22

An application for an injunction may be made without notice if notice would enable the defendant to take steps to defeat the purpose of the injunction

Answer 23

Injunctions are based on the inadequacy of common law remedies The court may award damages under Lord Cairn’s Act, either in lieu of or in addition to an injunction In a rare case, the court will grant a declaration that a person who has yet to seek an injunction has no entitlement to it [Greenwich Healthcare NHS Trust v London Quadrant Trust]

Answer 24

It is possible to enjoin a defendant who is not personally within the jurisdiction, provided service out of the jurisdiction can properly be done under the civil procedure rules But, as a general rule, no injunction will be granted in connection with the title to land outside the jurisdiction, even if the defendant is within the jurisdiction An injunction may be granted against an unnamed defendant, or against all members of a class or organisation to restrain the unlawful acts of unidentified members

Answer 25

Non-compliance with an injunction, or an undertaking given in lieu [Hussain v Hussain], is contempt of court [Parker v Camden LBC; Contempt of Court Act], punishable by imprisonment [Hale v Tanner], in the case of a corporation the sequestration of property, or a fine Acts done in breach of an injunction may be void for illegality [Clarke v Chadburn]

Answer 26

An injunction will not normally lie against the Crown. The proper remedy in such cases is the declaration

Answer 27

“It is a fundamental rule that the court will only grant an injunction at the suit of a private individual to support a legal right” [Thorne v British Broadcasting Corp] The general rule is that public rights are protected by the Attorney General acting either on their own initiative, or in relation of a member of the public. However, an individual may seek an injunction if interference with a public right, created by statute or existing at common law, would also infringe some private right of his or would inflict special damage on him

Answer 28

The claimant alleged that the defendant violated their patent to an absorbable surgical suture (the products were not yet on the market). They requested for an interim injunction, which they were granted

Answer 29

Will c be irreparably harmed if the injunction were not given

Answer 30

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises

Answer 31

Could the courts freeze the accounts of a company pending the results of a trial

Answer 32

"If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets.”

Answer 33

Rather than needing to establish the claim in your favour at trial first, we can award a freezing injunction pending trial in order to prevent the defendant from dispersing their assets

Answer 34

Where ordinarily the courts would have ordered an injunction by Lord Cairn’s Act / Chancery Amendment Act 1858 - if the court thinks it fit to award damages in addition to or in substitution for an injunction or SP, the court shall do so

Answer 35

Where the Court of Appeal or the High Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance.

Answer 36

Shelfer v City of London Electric, AL Smith (1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction” Then damages in substitution for an injunction may be given Now only seen as guiding principles

Answer 37

In Lawrence v Fen Tigers, Lord Neuberger emphasised that even if there are guiding principles, it is still a question of discretion which should not be limited First, the application of the four tests must not be such as “to be a fetter on the exercise of the court's discretion. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted.” These are not tests, but they are elements

Answer 38

Millet LJ ruled that: “the grant of an injunction, like all equitable remedies, is discretionary. Many proprietary rights cannot be protected at all by the common law. The owner must submit to unlawful interference with his rights and be content with damages. If he wants to be protected he must seek equitable relief, and he has no absolute right to that

Answer 39

Setting aside a transaction The right to rescind means a contract is voidable until it is set aside. Rescission is sometimes used more loosely to deal with repudiation or other forms of termination or void contracts – this is not the case here

Answer 40

Applies as between the parties to a contract o Unilateral or bilateral May apply in the cases of a gift A principal may also rescind a transaction into which their fiduciary has entered in breach of a fiduciary duty It varies depending on time of the transaction involved

Answer 41

Putting things back as they were; making things whole again You can get back whatever you paid, but you must pay back anything received

Answer 42

When the other party has not given consideration Usually dealing with tax Use Pitt v Holt

Answer 43

Mrs Pitt was involved in setting up a trust for her husband, who was involved in an accident (in which there was a personal injury settlement). She set up the trust to manage the sum she was awarded. The way the trust was set up, it had unintended inheritance taxation (the professional taxers did not appreciate this). The SC considered in what circumstances can you rescind a trust and start again and not have to pay the tax. Earlier cases distinguished between transactions you knew what was going on and the consequences of the transaction (such as tax). Here, Mrs Pitt understood the nature of the transaction. The SC created a new concept:

Answer 44

The court must consider in the round: 1. the existence of a distinct mistake 2. the degree of centrality to the transaction 3. the seriousness of the consequences Then make an evaluative judgment whether it would be unconscionable to leave the mistake uncorrected

Answer 45

Taking the matter in the round, it would have been unconscionable not to set aside the mistake

Answer 46

It would be a good thing if there was a broader doctrine on mistake, but the courts do not have the power to create one

Answer 47

If it is equitable to do so, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission

Answer 48

The claimant bought a car that he was told was brand new. However, it was not brand new and it had been involved in an accident. The claimant wanted to reject the car and stopped using it.

Answer 49

“The words ‘in lieu of rescission’ must… carry with them the implication that rescission is available (or was available at the time the contract was rescinded). If it is not (or was not available in law) … rescission is not available and damages cannot be said to be awarded ‘in lieu of rescission.” If there are barriers to awarding rescission, you cannot get the damages If there are any equitable reasons why there cannot be rescission, that will prevent the ability to award damages

Answer 50

Knowing the facts but nonetheless proceeding Where there is a reason for setting aside the contract, the contract is voidable. But, if you treat K as valid, then you will be treated as having confirmed the contract, and the right to rescind will be lost Amounts to waiver of the right Also subject to the doctrine of laches

Answer 51

It is unfair to rescind a transaction after a long period of time The time limit is not fixed, and it depends on the circumstances of the case

Answer 52

Putting the parties back in the position that they were Halpern v Halpern - you can take a broad view of the matter of practical justice Rogge v Rogge - the court can require a party to take certain steps to undo a transaction

Answer 53

A bona fide purchaser for value has a good defence against equitable claims Where a third party has acquired a right acting in good faith, you cannot rescind the original transaction

Answer 54

“Where it would be practically unjust to give a remedy … lapse of time and delay are most material” - If the conduct of the party is equivalent to that of a waiver - Where providing the remedy would “put the other party in a situation in which it would not be reasonable to place him” - The longer you take, the more likely it is to be unjust on the other party The mere passage of time is not enough to engage the doctrine of laches - The validity of the defence of delay “must be tried upon principles [that are] substantially equitable.” - Delay is just a factor; it will not warrant rescission if it is not put together with other things, such as reliance

Answer 55

The correction of mistakes in a written document

Answer 56

Where documents do not accurately record the agreement. The written agreement does not reflect the agreement between the parties Rectification will be awarded

Answer 57

Where only one other party is aware of the mistake. Rectification is available where either the other party knew a mistake was made and was trying to profit from that, or the mistake of the person creating the document can be rectified

Answer 58

With voluntary unilateral transactions, it does not matter what the person receiving thought, it only matters about what the person implementing the transaction thought In the cases of contractual agreements, we are looking at the intention of both parties (the intention at the time of the agreement)

Answer 59

The basis for rectification is “entirely concerned with the parties’ subjective state of mind” “Before a written contract may be rectified on the basis of a common mistake, it is necessary to show either: (1) that the document fails to give effect to a prior concluded contract or (2) that, when they executed the document, the parties had a common intention in respect of a particular matter which, by mistake, the document did not accurately record”

Answer 60

Gives formality requirements for wills

Answer 61

“If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence – (a) of a clerical error; or (b) of a failure to understand his instructions, It may order that the will shall be rectified so as to carry out its intentions”

Answer 62

If it is a question of interpretation, then the document in question has, and has always had, the meaning and effect as determined by the court, and that is the end of the matter. On the other hand, if it is a question of rectification, then the document, as rectified, has a different meaning from that which it appears to have on its face, and the court would have jurisdiction to refuse rectification or to grant it on terms