EXAM NOTES - Equitable Remedies Flashcards
why do people have the right to a remedy?
remedies arise out the infringement of a recognisable legal or equitable right
- Day v Brownrigg
define specific performance and give the general test
- Order to perform positive contractual obligations
- Test: Adderly v Dixon – are damages an inadequate remedy here?
how does the court determine if SP is appropriate for sale of goods contracts?
- if the item is unique, SP usually granted
- Cohen v Roche; antique chairs were ‘ordinary articles of commerce’
- Falcke v Gray; Ming vases were of ‘unusual beauty, rarity and distinction
- Behnke v Bede; is the item of ‘peculiar value’ to C?
- Lotus v Lamplough; increase in value can go towards the goods being rare and unique
how does the court determine if SP is appropriate for service contracts?
- Verall v Great Yarmouth – must show the service is irreplaceable and damages would therefore be inadequate e.g. specialist/famous/unique designs/part completed already
how does supervision relate to SP and contracts for services?
- Ryan - Constant supervision required?
- Co-op v Argyll – unacceptable degree of supervision required? Sequence of contempt of courts?
- Posner v Scott-Lewis
o 1. Sufficient definition of what has to be done?
o 2. Relative harm to both parties?
How do contracts for personal services with contractors relate to SP
- De Francesco v Barnum could it be akin to slavery to grant SP?
- Ryan v Mutual Tontine - constant supervision required?
- Giles v Morris could the purpose of the contract be defeated by deliberate poor performance? Equity will not act in vain.
- Co-Op v Argyll many contempt proceedings needed?
how does the court determine if SP is appropriate for sale or rental of land contracts?
- Land is almost always unique so SP quite easy to get
- Verall v Great Yarmouth BC – available even for people who are renting
what is the main drawback of SP?
only available at trial - slow
define an IMI
interim mandatory injunction
- Order requiring the D to act in some way
- Unlike SP available as a pre-trial remedy
what is the test for IMIs
- Shepherd Homes v Sandham: is there a ‘high degree of assurance’ that the remedy is rightly granted? ie is the case likely to win at court?
- Locobail v Agroexpert – confirmed the ‘high degree of assurance’; no need for the American Cyanamid v Ethicon test
define an IPI
interim prohibitory injunction
- Order restraining the D from acting in some way
what is the test for whether IPIs should be granted?
American Cyanamid v Ethicon
o 1) must be neither frivolous (trivial) nor vexatious (abuse of process/malicious); must be a serious matter
o 2) balance of convenience
o 3) Courts can consider additional factors too
give an example of a frivolous or trivial claim for IPIs
Morning Star v Express Newspapers – Only a ‘moron in a hurry’ would confuse the papers
how does the balance of convenience relate to whether the court grants an IPI?
If IPI is wrongly refused, will damages be adequate for C? e.g. if the bike is sold on? Will D be able to pay adequate damages?
If IPI is wrongly granted, will damages be adequate for D? e.g. if bike is prevented from being sold on? Will C be able to pay adequate damages?
what additional factors will courts look to when deciding whether to grant an IPI?
Default position is that the court will preserve the status quo ante Garden Cottage Foods v MMB
What will be the effect on a party’s business if not granted? Potters Ballotini v WB
Has there been significant investment by C or D? if so, courts may act to protect it Catnic v Stressline
Fellows and Son v Fisher loss of employment can be considered
Associated Newspapers v Insert Media ¬ loss of business goodwill can be considered