Lecture 17- Remedies Flashcards
Types of Remedies (3)
- Non-legal
- ADR
- Legal Equitable + Common Law
Legal (2)
- Equitable-only available at discretion of court, not automatic
- Common law- available ‘as of right’ if established by C
3 key issues in contract
A party to a contract, the Defendant, has failed to perform some obligation that they undertook in the contract.
D is threatening not to perform an obligation that they have undertaken under a contract.
There is something linked to the formation of the contract which renders it potentially voidable eg misrepresentation, mistake, duress.
Point of damages in contract law
Damages in contract seek to put the claimant in the position in which they would have been if the contract had been properly performed.
Specific Performance
Requires the party in breach to perform the contract
If granted, and defendant fails to do this, then they will be in contempt of court.
SP is the opposite of an injunction whereby a court orders a party to refrain from doing something.
SP equitable remedy and therefore at discretion of the court.
Issues likely to arise?
A court will be unlikely to grant specific performance if damages are considered to be an adequate remedy.
Will depend upon circumstances – less likely to be used for a dispute over goods than that of land.
At discretion of court rather than as of right (common law damages).
Restrictions on SP
Equitable remedies – equity will only intervene if a sufficient remedy cannot be obtained at common law.
If damages are an ‘adequate’ remedy an order for specific performance will not be made.
Order for SP must be clearly stated and capable of implementation without further judicial intervention.
SP Case
Beswick v Beswick [1968]
Coal merchant (PB) assigned business assets to nephew (JB). Agreement was that nephew paid PB a weekly sum for life and upon death continued to pay a sum to his widow. Upon his PB’s death, the defendant (JB) paid one payment to the deceased’s widow then stopped. The wife bought an action for unpaid sums and an order for specific performance. The court held:
Order for specific performance granted.
The court’s approach
Commentators argued that the House of Lords had implicitly adopted an approach in which specific performance and damages were coordinate remedies. The courts would be free to award whichever was more appropriate on the facts of a case, without having to treat damages as the default remedy or confine specific performance to cases where damages failed to provide an adequate remedy
Subsequent cases did not follow this broader approach. Although there were some moves towards loosening the limits on specific performance,21 the traditional view that specific performance is an exceptional remedy was reaffirmed by the House of Lords in Co-operative Insurance Society Ltd v Argyll Stores Ltd
Unlikely to grant if?
Courts may award SP if they have serious doubts whether a defendant would have sufficient funds to pay damages (see Evans Marshall & Co Ltd v Bertola SA [1973] )
However, unlikely to be granted if oppressive – difficult to use in employment contracts (common law then Trade Union and Labour Relations (Consolidation) Act 1992 s 236).
Personal Services - Interference with personal liberty and too difficult to supervise.
SP and Injunctions (1) Record Case
In Page One Records v Britton, a pop group was trying, in breach of contract, to fire its manager and hire a different manager. The court refused to grant an injunction restraining breach, on the basis that the courts would not force the clients to retain a manager with whom they no longer wished to work. For similar reasons, an injunction will not be granted where it would impose so much financial hardship on an employee as to, in effect, compel him to work for the original employer
SP and Injunctions (2) Boxing Case
In Warren v Mendy,49 Warren, a boxing manager, believed that Mendy, a rival manager, was attempting to persuade one of Warren’s clients, Nigel Benn, to fire Warren and to appoint Mendy in his place. He sought an injunction against Mendy. The court held that an injunction would not be granted. The relationship between boxer and manager involved mutual trust and confidence. An injunction would not serve either party if that confidence no longer subsisted. Specific performance of such an agreement would not have been granted, and the effect of an injunction would have been indistinguishable from specific performance.
Adequacy of damages?
SP will not be granted if damages are adequate remedy.
Where damages are inadequate?
Consider relative bargaining power
Assessment of damages is impossible
Relative bargaining power case
Lord Westbury LC expressed this concern vividly in Isenberg v East India House Estate Co Ltd,3 holding that courts should not grant orders of specific performance if doing so would ‘deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make’. Specific performance will also not be awarded if to do so will be oppressive. Contracts of employment or personal service, for example, are not ordinarily specifically enforced, because doing so would interfere with personal liberty
