Judicial Remedies

Question 1

Judicial Remedies (5)

Answer 1

1. Debt (enforcing monetary payment) – for claims of money – if you don’t pay, there’s a judicial interest, the debt gets bigger and bigger. They can seize peoples assets
2. Specific Implement (a form of decree ad factum praestandum) - enforcing positive obligations
3. Interdict - stopping someone from doing something
4. Interim remedies under the Court of Session Act 1988 ss 46 - 47
5. Enforcement of other remedies agreed in the contract (ie. liquidated damages clauses)

Question 2

Highland & Universal Properties v Safeway 2000

Answer 2

Test for granting a specific implement:

1. what is being asked for must be ‘a matter of right’ under the contract
2. the specific implement must be framed with sufficient precision
3. it’s only refused in exceptional circumstances:
   - - if there is a very cogent reason for doing so
   - - it it is ‘inconvenient or unjust to grant one
   - - onus is on the defender to satisfy the above tests

Question 3

If you don’t obey a specific implement

Answer 3

you are charged with contempt of court.

leads to either being sent to prison or a fine for ‘rejecting the authority of the court’.

Question 4

Peace v City of Edinburgh Council 1999

Answer 4

Interdict case:

He was a teacher, under investigation for professional misconduct. Had been a teacher since 1978.

The council wanted to use procedure that had been in place since 1997, but he said he wanted the procedure used that had been stipulated in his contract.

He won - the council had to stop using that new procedure.

Other possible cases where interdict would be suitable: gardening leave, can’t steal clients, trade secrets.

Question 5

Church Commissioners for England v Abbey National Plc

Answer 5

Interim interdict - Court of Session Act 1988 ss 46-47

An interdict will not be allowed if, through it, the party subject to it will be forced into performing an obligation – they are not allowed to have indirect effect.

Question 6

Craig v McBeath (1863)

Answer 6

The law will not allow people to punish each other.

ie. Penalty clauses are unenforceable

Question 7

Dunlop Pneumatic Tyre v New Garage & Motor 1915 (5-part test)

Answer 7

The test to distinguish between a penalty clause and a liquidated damages clause:

1. The terminology used may not be conclusive - it is for the courts to decide if a clause is a penalty clause or a liquidated damages clause.
2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage
3. It must be a genuine pre-estimate of the loss
4. It is judged by circumstances at the time the contract was formed.
5. It will be unenforceable if the amount is extravagant and unconscionable.