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Public 1 and Contract > PL14: Remedies > Flashcards

PL14: Remedies Flashcards

1
Q

Specific performance

A

requiring the defendant to carry out their undertaking exactly according to the terms of the contract.

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2
Q

Injunction

A

preventing the defendant from doing something which the

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3
Q

Purpose of damages

A

Compensate the claimant for damage, loss or injury that they have suffered as result of breach.

Not punishment

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4
Q

Damages

A

payment of money

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5
Q

Damages when claimant have not suffered loss

A
  • Entitled judgement
  • Nominal damages - token amount
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6
Q

Compensating the innocent party

A

Putting the innocent party post-breach in the same position had the contract been performed.

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7
Q

Expectation Interest

A

Putting the party in the position they expected to be in

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8
Q

Robinson v Harman 1848

A
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9
Q

Parke B

A

Rule of common law

“to be placed in the same situation, with damages, as if the contract had been performed.

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10
Q

Three mechanisms for calculating the expectation interest

A
  • Cost of cure
  • Dimunition in value
  • Loss of amenity
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11
Q

Ruxley Electronics and Construction Ltd v Forsyth [1996]

A
  • Pool depth (meant to be 7 ft 6 inches; only built to 6 feet)
  • Cost of cure refused
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12
Q

Cost of cure

A

Cost of substitute/remedial work to put the claimant in the position they would’ve been had the contract been properly performed.

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13
Q

Method of calculating expectation interest in contracts involving defective works

A

Cost of cure

Birse Construction
Ltd v Eastern Telegraph Co Ltd [2004]

Must act reasonably

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14
Q

Birse Construction
Ltd v Eastern Telegraph Co Ltd [2004]

A
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15
Q

Must act reasonably in relation to the defect works

A

McGlinn v Waltham Contractors [2007]

Unreasonable to demolish and rebuild for purely aesthetic reasons.

Award limited to costs incurred remedying defects.

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16
Q

McGlinn v Waltham Contractors [2007]

A

Unreasonable to demolish and rebuild for purely aesthetic reasons.

Award limited to costs incurred remedying defects.

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17
Q

Diminution in value

A

Calculated by reference to the difference between performance received and that promised in the contract.

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18
Q

Ruxley v Forsyth [1996]

A
  • Swimming pool 6ft
  • Unreasonable for cost of cure as out of proportion to benefit obtained.
  • Claimants lack of intention to carry out remedial term relevant
  • Considered Loss of amenity - awarded £2,500 = non-economic loss of pleasure
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19
Q

Loss of amenity

A

Developed in Ruxley - available remedy where their loss is not economic in value, but nevertheless has a value to them

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20
Q

Loss of amenity in commercial settings

A

‘unusual, if not
impossible’ for damages to be awarded
(Regus (UK) Ltd v Epcot Solutions Ltd [2007]).

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21
Q

Regus (UK) Ltd v Epcot Solutions Ltd [2007]

A
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22
Q

Distinguishing between:

Diminution in value
Cost of cure

A
  • Disparity only likely where there is dispute with regard to particular specification required by the purchaser
  • What is the claimants expectation loss - what position would the claimant be in had the contract be properly performed
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23
Q

Robinson v Harman)

A

what position would the claimant have been had the contract been properly performed

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24
Q

Expectation damages calc

A

Difference between expected profit and actual profit

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25
Q

Reliance interest

A

allows claimant to recover the expenses which have been incurred in preparing for, or in part performance of, the contract which have been rendered pointless by the breach.

  • backwards in approach
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26
Q

Limited to reliance loss

A

If expectation interest is very speculative won’t award expectation damages

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27
Q

Reliance interest only allows recovery of…

A

wasted expenditure, this does not mean all expenditure

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28
Q

Anglia TV v Reed [1972]

A
  • Claimant engaged the defendant to star in a film they were making
  • had to abandon film as couldn’t find replacement
  • claimed damages in respect of expenses
  • Given damages under reliance, even though prior to contract
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29
Q

Reliance losses are incurred…

A

Reliance losses are incurred prior to breach, not those incurred as a consequence of breach

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30
Q

Reliance losses

A

Look at actual spend
Remember wastage

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31
Q

Two main ways of awarding damage

A

Expectation interest - forward

Reliance interest - backward

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32
Q

Particular types of loss

A

Mental distress
Loss of reputation
Loss of chance

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33
Q

Damages for mental distress

A

General rule is damages not awarded in relation to mental distress, anguish or
annoyance caused by breach of contract.

Addis v Gramophone Co Ltd [1909]

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34
Q

Addis v Gramophone Co Ltd [1909]

A

House of Lords refused to uphold an award which had been made in relation to the ‘harsh and humiliating’ way in which the claimant had been dismissed from his job in breach of contract.

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35
Q

Johnson v Unisys Ltd [2003]

A

Damages for distress and injury to feelings resulting from the manner of dismissal are unavailable in the law of contract

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36
Q

Exceptions to rules of mental distress

A
  • Contracts whose whole purpose was pleasure/relaxation
  • more recently have allowed damages where “major object”
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37
Q

Jarvis v Swan Tours [1973]

A

compensation was limited to cases involving contracts whose whole purpose
was the provision of pleasure, relaxation and peace of mind

38
Q

Farley v Skinner (No. 2) [2001]

A

a major object (though not the whole purpose) of the contract was to
provide pleasure, relaxation and peace of mind

39
Q

Damages for loss of reputation

A

General rule is that damages will not be awarded for loss of reputation

40
Q

Malik v Bank of Credit and Commerce International [1998]

A
  • Bank of Credit and Commerce International (BCCI), which collapsed in 1991
  • Adversely affected employment prospects
  • Implied term of trust and confidence
    *Damages awarded limited to financial loss
41
Q

Damages for loss of chance

A

Opportunity is:
* quantifiable
* real/substantial chance opportunity would have come to fruition

Chaplin v Hicks 1911

42
Q

Chaplin v Hicks [1911]

A
  • denied the chance to go to the final round of contest.
  • “real and substantial”
  • If more than 50% chance of winning - seek to recover loss in full
43
Q

Damages on behalf of another

A
  • Cannot be recovered on behalf of another party for loss of another party

See privity

44
Q

Damages can only be recovered if….

A

Damages can only be recovered if they are caused by the breach

45
Q

Damages cannot be recover if they are…

A

Damages cannot be recover if they are too remote from the breach

46
Q

Damages can be reduce if …

A

Damages can be reduced if the claimant has failed to take reasonable steps to mitigate its losses

47
Q

Causation

A
  • Establish causal link
  • Assessing:
  • has caused loss
  • defendant responsible
48
Q

Define Factual causation:

A

Whether the breach by the defendant has, as a matter of fact, caused the
loss suffered by the claimant.

49
Q

Define Legal causation:

A

Whether the defendant should be held responsible for loss which has, as a
matter of fact, been caused by its breach.

50
Q

Factual Causation

A

‘common sense approach’ (Galoo Ltd v Bright Grahame Murray [1994]

“dominant” or “effective” cause of loss

51
Q

Galoo Ltd v Bright Grahame Murray [1994]

A
52
Q

Legal causation

A

novus actus interveniens – a particular category of intervening event which
will be treated as having broken the chain of causation.

Whether chain of causation was broken

53
Q

novus actus interveniens

A

new intervening act

54
Q

Lambert v Lewis [1982]

A
  • Defective trailer
  • Used when obv broken
  • Accident
  • Use broke chain of causation
  • Dealer held not liable
55
Q

Monarch Steamship Co Ltd v A/B Karlshamns
Oljefabriker [1949]

A

If the intervening event was ‘likely to happen’ it generally will not be held to break the chain of causation.

56
Q

Remoteness of damage

A
  • Not all losses flowing from (ie caused by) a breach of contract
    are recoverable
  • Line drawn in law of remoteness
57
Q

Hadley v Baxendale (1854) - damage test

A

Damages
* Arising naturally - ie usual course of tings
* May have reasonably been supposed to be in the contemplation of both parties

58
Q

Hadley v Baxendale (1854)

A
  • Broken mill shaft
  • Delay in mill-shaft
  • Two stage test
    First limb - no losses as expect a spare shaft
    Second limb - defendant not reasonably in contemplation

No damages

59
Q

First Limb of Hadley v Baxendale (1854)

A

loss of a type ordinarily and naturally arising from the breach

Not based on knowledge of particular parties

“usual course”

60
Q

Second Limb of Hadley v Baxendale (1854)

A

Defendant had sufficient actual knowledge of the particular and special
circumstances to be aware of the risk of those losses.

61
Q

Lord Hoffman

Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia, The Achilleas
[2009]

A

found liability for damages upon the intention of the parties
(objectively ascertained) because all contractual liability is voluntarily undertaken

62
Q

Jackson v Royal Bank of Scotland [2005]

A

what was in the contemplation (or knowledge) of the parties
was to be judged at the time of contracting, as opposed to the time of the breach.

63
Q

Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949

A
  • Boiler damaged and delayed
  • Loss of “usual course of things” laundry - first limb of HvB
  • Loss of lucrative contracts do not meet either limb of HvB
64
Q

Mitigation

A

Injured party should take ‘reasonable steps’ to minimise the effect of the breach.

(British Westinghouse Electric and Manufacturing Co v
Underground Electric Rail Co [1912])

65
Q

(British Westinghouse Electric and Manufacturing Co v Underground Electric Rail Co [1912])

A
66
Q

No obligation to mitigate but..

A

Technically, there is no obligation to mitigate, but losses attributable to a failure to do so are not
legally recoverable.

What is “reasonable” - question of fact

67
Q

Pilkington v Wood [1953]

A

“reasonable” mitigation

No expectation that the claimant should embark on ‘a complicated and
difficult piece of litigation’ in order to minimise the effects of the defendant’s breach.

68
Q

Payzu v Saunders [1919]

A
  • Silk

Reasonable steps to mitigate may include accepting the performance offered by the defendant under a new contract even when that performance amounts to a breach of the original contract

69
Q

Banco de Portugal v Waterlow & Sons [1932]

A

claimant’s actions ‘ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the
difficulty’

70
Q

Is there a duty to mitigate a claim for payment of a debt?

A

No duty to mitigate; because the amount is payable as a contractual right rather than as damages

71
Q

Reliance Interest

A
72
Q

C & P Haulage v Middleton [1983]

A

Mr Middleton spent £1,767.51 to put fixtures in place.
He was ejected from premises.
Claimed damages

losses must flow from the breach, not for making a bad bargain

Limited to nominal damages

73
Q

C & P Haulage v Middleton [1983] shows that ….

A

It is only possible for the claimant to claim reliance interest if the contract would have enabled them to recoup those expenses had it been properly performed

74
Q

Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd 2010

A

Defendant to prove the would not have recouped the expenditure had contract gone ahead

75
Q

The purpose of damages is compensatory meaning that….

A

No award of
damages can put the claimant in a better position than it would have been in had the contract
been performed
(the ‘no windfall’ principle)

76
Q

‘no windfall’ principle

A

No award of
damages can put the claimant in a better position than it would have been in had the contract
been performed

77
Q

Restitution Interest

A

Interest a claimant has in the restoration to them of benefits which the defaulting party has acquired at their expense

78
Q

Attorney-General v Blake
[2001] and Restitution Interest

A

Certain circumstances in which a claimant
can recover the profit which the defendant has made from its breach of contract

79
Q

Attorney-General v Blake
[2001]

A
  • Blake divulged official secrets
  • Crown sought to recover royalties
  • Held in exceptional circumstances
  • exceptional
  • legitimate interest in depriving profit
80
Q

Efficient Breach

A
  • Cynical and deliberate
  • Enabled to enter into more profitable party
  • By entering into contract, couldn’t perform claimant contract

puts the breaching party in a better position

81
Q

Efficient Breach and Restitution

A
  • Existent of “efficient breach” is not enough
82
Q

Morris-Garner v One Step (Support) Ltd [2018]

A

Exceptional nature of Blake once again emphasised

82
Q

Experience Hendrix LLC v PPX Enterprises Inc
(2003)

A

Not exceptional enough for restituiton.

83
Q

Total Failure of consideration

A
  • One party has provided something of value under the contract but has received nothing in return.
  • Restitution operate to reverse unjust enrichment
84
Q

Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia, The Achilleas [2009]

A

*

85
Q

Supershield Ltd v Siemens Building Technologies FE
Ltd [2010]

A
86
Q

John Grimes Partnership Ltd v Gubbins [2013]

A
87
Q

Remedies under CRA 2015

A

Part 1 provides remedies to consumers when implied terms are breached

88
Q

CRA 2015 - non conforming goods

A

Fail to meet any of
the requirements in:
s 9 (satisfactory quality),
s 10 (reasonably fit for their particular purpose) or
s 11 (correspondence with description)

89
Q

Remedial options for non-conforming goods ; CRA 2015

A

(a) The short-term right to reject
(b) The right to repair or replacement
(c) The right to a price reduction or the final right to reject.

90
Q
A

Public 1 and Contract (24 decks)

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