Remedies

• Remedy


  A solution in a civil case; an award made by the court to the innocent party
• Types of remedies


  • Damages
  • Equitable remedies
• Damages


  A sum of money paid to compensate the innocent party
• Common law remedies


  • Available 'as a right' if a contract is breached - automatically
• Purpose of damages


  To put the claimant in the position they would have been in had the contract been performed
• Types of damages


  • Pecuniary losses (financial losses)
  • Non-pecuniary losses (other losses such as mental distress, disappointment, hurt feelings or humiliation)
• The general rule in contract law for non-pecuniary loss is that you can't claim for mental distress alone
• Non-pecuniary losses- case example:


  • Farley v Skinner
• Calculating loss


  1. Loss of expectation - courts aim to put claimants in the position they would have been in had the breach not occurred - Denton v British Steel Corporation

  
  

  2. Reliance loss - courts seek to put the claimant in the position they were in before the contract was made
• A claimant cannot claim for both loss of expectation and reliance loss
• Equitable remedies


  Different to common law remedies (damages) because they are discretionary (the Judge decides)

  Used where damages are inadequate to compensate the claimant

  Take into account the behaviour of both parties and the overall justice of the case
• Types of injunctions


  • Interim or interlocutory (temporary injunction until court hearing)
  • Prohibitory (order not to do something)
  • Mandatory (order to do something)
• Specific performance- Beswick v Beswick


  An order compelling one side of the contract to perform their obligations under a contract

  Rarely used as courts are unwilling to order a party to unwillingly perform the contract

  Only awarded where: damages would be inadequate, it must not cause any hardship to the defendant, and the contract must have been made fairly
• Rescission


  An equitable remedy where a written document can be altered to correct a mistake

  The court will order the document to be changed to say what it should have in the first place

  Only possible in written contracts
• Limitations on the awarding of remedies

  • Remoteness of damage
  • Causation
  • Mitigation of loss
  • Financial loss is protected but little consideration given to mental distress/anxiety
  • Cost of bringing the matter to court
  • Time and effort to bring the matter to court
  • Limitations on legal aid (may not be able to afford it)
  • Use of 'no win no fee' may limit the amount of damages given
• Just because remedies are available doesn't mean people will be satisfied
• Common law remedy of damages: "as a right"


  Financial compensation: aims to put the victim, so far as possible, in the same position had the contract been performed
• Types of damages


  • Pecuniary losses (financial loss as the result of a breach of contract)
  • Non-pecuniary losses (not traditionally awarded but relaxed for pleasure, relaxation and peace of mind)
• Limitations on damages


  • Causation
  • Remoteness
  • Duty to mitigate loss
  • Calculating loss (loss of expectation or reliance loss)
• Equitable remedies are discretionary
• Equitable remedies


  • Injunctions
  • Specific Performance
  • Rescission
  • Rectification