2 - equitable remedies

• • not available by rights - only if damages aren't sufficient
  • specific performance - order to carry out the contract
  • injunctions - court order prohibiting someone from doing something or requiring them to take a specific action
  • Discretionary - subject to discretion of the courts
• specific performance

  • order to carry out the contract
  • damages must be inadequate
  • Must not involve personal service of D
  • Must not require constant supervision of the court
  • must not impose severe hardship on D
  • C must come with clean hands (not in bad faith) and contract cant be unfair
• inadequacy of damages - no available substitutes

  • Behnke v Bede shipping - sale of a specific old ship that tried to be renovated, agreement fell through and there was a request for specific performance because the ship was unique. SP was granted as the ship was old, cheap and still capable of sailing - no other ship fitted this characteristics at this time
• inadequacy of damages - no available substitutes

  • Howard E Perry Ltd v BRB (British rail board) - contract for action of bailment, delivery of steel impossible due to striking, H ordered steel pre-strike, BRB had steel in stock and said it would be delivered before the strike. Steel commercially unique at the time as steel and rail workers striking. Quasi specific performance granted due to commercial uniqueness of the context and time
• hard to quantify doesn't mean inadequacy of damages

  • Beswick v Beswick - retiring and giving coal business to nephew, deal made that nephew gets business for free but provides a pensions for the remainder of uncles wife and uncle lifetimes. Uncle died, nephew refused to pay to wife. she sued, but she signed no contract to agree the deal originally so couldn't bring to action anything. She did handle uncles estate after he died therefore acting on his behalf. Court would have held nominal damages but because the deal spanned over a potential lifetime it was hard to calculate and so SP granted
• personal services

  • Posner v Scott-Lewis - found there's a difference between contract of service (giving someone employee status in return of something of value) and contract for service (service for something else in return without employee status)
  • SP not granted if an employee breaches and the relationship of employee and employer relationship is severed - aim of SP is to retain the relationship
• constant supervision of courts

  • Co op insurance services v Argyll stores - tenant of retail premises in a shopping centre closed the supermarket because it was operated at a loss, breaching a 'keep open' agreement, landlord sought SP, judge made an order for damages. A appealed asking for an injunction requiring D to carry on business, not granted.
• too vague

  • Joseph v National magazine co - J asked NMC to write an article under his name to appear in the D magazine, editor made alterations to the article, J refused article to be under his name, claiming SP. Held, J was entitled to write in his own style and not bound to having his name as author of a different article in a different style so he did not reject the contract - SP not granted
• severe hardship

  • Patel v Ali - A contracted to sell her house to P, D developed bone cancer and lost a leg, after 4 years delay P made an order for SP, A appealed on grounds of hardship, appeal allowed
• lack of mutual availability of remedy

  • Price v Strange - P sub-tenant of S lessee, after expiry of the sub tenancy, P postponed and continued paying rent, S orally agreed to grant a long underlease at increased rent in return for P making repairs to the premises, both parties accepted. S rejected oral agreement and had repairs done herself, whilst collecting the extra rent for 4 months. P claimed SP, dismissed due to want of mutuality, P appealed and it was allowed, ordering SP
• injunctions

  • can be interlocutory (non final, temporary) or final
  • can be mandatory (requires party to do an act) or prohibitory (requires a party to refrain form doing an act)
  • mandatory injunctions only interlocutory
• 4 principles for granting prohibitory injunctions

  1. when there is a negative demand, breach can be restrained by injunction to restrain future breaches
  2. balance of convenience test applies to applications for interim injunctions
  3. court takes into account strengths and weaknesses of granting an injunction
  4. must be a special circumstance