Topic 2 Equitable Remedies

• What are equitable remedies, provide some examples

  They are discretionary so might/ might not be provided. This would be more flexible to ensure fairness, remedies are available as a right. This May include:

  • Specific performance
  • Injunctions
  • Physical remedies such as asking someone to do something
• Common law remedies


  • Mainly damages and Available as of right to produce justice. A breach of contract tend to be monetary.
  • More harsh than equitable (any sort of legal regulation which comes from case law/precedents)
• What is Specific performance and why is it used.

  • Allows the non-breaching party to seek a court order to compelling the breaching party to fulfil their contractual obligations
  • Sought when monetary damages would be inadequate or when the subject matter of the contract is unique
  • Failure to comply can result in contempt of court charges and potential imprisonment
• Remedies such as specific performance and injunctions are not automatically granted like common law remedies such as damages
• Equitable remedies are typically only awarded when damages would not adequately remedy the breach
• Inadequacy of damages. Provide a case example


  • Cases which are so unique that there is no adequacy of damages for that breach but is subjective upon people
  • Examples may include priceless artwork or land which may not be the same
  • This can be a factor for specific performance but not the sole reason

  Cohen v Roche

  Falcke v Gray
• Inadequacy of damages (hard to quantify or nominal) and how does it relate the 3rd parties (Provide a case example)

  • Occurs when the subject matter is unique that it is hard to quantify monetary damages
  • 3rd parties have no rights in a contract where they are not included so would only apply to the parties in question but there are exceptions

  Beswick v Beswick
• Commercial uniqueness, provide 2 examples


  • Dependent on the case facts which includes a subject matter with uniqueness to the actual product
  • For example: Behnke v. Bede Shipping- purchase of a specific ship
  • Howard E. Perry Ltd v. BRB- Union strikes for British steel so the factories was not open, and deliveries did not occur
• What is the courrts opinion on injunctions in relation to Personal services Provide 2 case example

  • Contracts that involve personal services, are not typically subject to specific performance through injunctions because compelling someone to work for a specific entity against their will would infringe on personal liberty
  • Courts also avoid enforcing promises not to work for others if doing so effectively forces the individual to remain in the employment of the claimant

  Warner Bros v Nelson

  Lumley v Wagner
• Discretionary nature to Injunctions. Provide a case

  • The rules surrounding specific performance and injunctions, are not absolute
  • Hill v C. A. Parsons & Co. Ltd (1972), where an injunction was granted to prevent the dismissal of an employee in breach of contract, effectively ordering specific performance of a personal service contract. This was because the employer did not want to dismiss the employee but was done so under the union
• Enforcement against an employee through specific performance or injunction, compelling them to work or attend a place for work, is explicitly prohibited by section 236 of the Trade Union & Labour Relations (Consolidation) Act 1992
• Injunctions


  • Preventive measures aimed at restraining the breaching party from engaging in actions that would cause harm or violate legal rights
  • Can be used to prevent disclosure of confidential information, unfair competition, or infringement of intellectual property rights
  • Violating an injunction can lead to contempt of court charges and associated penalties
• Interim injunction, provide a case example.


  • A temporary court order issued to provide relief until a full hearing can take place and a final decision is made. Typically used in emergencies where immediate action is necessary to prevent harm or preserve rights
  • Araci v Fallon- Jockey F entered an agreement that he would ride Araci's horse and had expressed obligation to not ride anyone else or pay 30k. This was breached so Araci sought an injunction which was not granted as the liquidated cause was adequate damages.
• Interlocutory injunctions, provide a case example


  • Typically used as a temporary order issued to prevent things from getting worse. There must be a SERIOUS ISSUE to be tried and the BALANCE OF CONVENIENCE must be considered

  This is shown in American Cyanamid Corp v Ethicon where there is 2 questions

  · Do the acts available at interlocutory application show that there is a serious question to be answered?

  · if yes where does the balance of convenience lie? (e.g inventions, reverse engineer)
• Too Vague, provide a case example


  • Vager the contract, less likely specific performance would be granted by courts
  • Hard to identify how to perform specific performance on a contract that is so hard to identify the roles
  • Joseph v National Magazine co. ltd. Joesph wanted to publish an article but the magazine made edits which wasnt an accurate representation so joseph refused to publish under his name. Magazine wanted SP but failed because the exact terms were too vague but Joeseph got damages for breach of contract.
• Severe hardship, provide 2 cases


  Specific performance is used to put defendants in the position of severe hardship

  Patel v alI- Patel was contracted to sell house to ali but later refused because he was bankrupt, had cancer and his wife had a child. Ali sought SP but was rejected because of hardship by Goulding J.

  Denne v Light- Light agreed to sell land surrounded by other people so it was uaccessable. Denne refused the purchase unless Light provided a method to access. Light wanted SP but was rejected because Denne undue hardship to enter.
• "Clean hands" rule and unfairness of contract, provide a case example


  If a party exploits their knowledge or position to get an unfair deal, they may be denied specific performance.

  
  

  Walters v Morgan- D purchased land and c wanted to mine there so had a draft lease and pressured C into it. D did not know the value of the land but C did, when D realised he backed out so C sued for SP while D sued for misrepresentation. Was not misrepresentation because silence is not misrepresentation. NO SP because C wanted to take advantage of D's ignorance
• Inadequacy of consideration. Provide a case 


  Consideration (exchange of promises) needs to be sufficient and adequate.

  Falcke v Gray
• Lack of mutual availability of remedy, provide a case


  use to be Specific performance should be potentially available to either party at the time the contract was made to ensure fairness. However, now mutuality only requires the party order to perform to recieve or assured performance in return.

  
  

  Price v strange- strange allowed sublet of house to price and allowed price to decorate but repudiates the agreement afterwards so Price sues for SP. Initally was denied because the D didnt request it but reversed because the C performed until prevented by defendant
• Other factors governing availability of specific performance

  • Equitable remedies like specific performance are discretionary and depend on various factors and circumstances, including public policy considerations
  • Inadequate consideration: Collier v. Brown
  • No consideration - equity will not assist a volunteer: Cannon v. Hartley
  • Impossibility: Forrer v. Nash
  • Building contracts: Flint v. Brandon (but exceptions are possible)
• What is constant supervision?

  Where the courts have to supervise performance over an extended period of time.
• 2 cases on constant supervision

  Posner v Scott Lewis- Landlord failed to provide a porter as part of the contract but was not a residency porter. Specific performance granted because the contract stated a residency porter and the courts did not want to dedicate court oversight.

  Co-operative Insurance Society v Argyll Stores- Coop had a contract for 25 years and was open during regular business hours but was making a loss so exited the contract. Aryll sought SP but was given damages since it was an injustice to keep Co-op operating. SP would not be granted if there is constant supervision
• What was the facts and LP in Cohen v Roche and Fackle v Grey?

  LP: inadequacy of damages (uniqueness of subject matter)

  Cohen v Roche- C owned a shop and agreed to purchase chairs as stock, D refused to deliver breaching the contract so sued to SP. It was rejected and C was given compensation because the chairs were ordinary and had no special value of interest

  Facke v Grey- Gray owned 2 ming vases worth a lot more. However, Grey sold it to someone else for higher so Fackle sought SP. It was rejected because they did not have equal footing.
• What was the facts and legal principle in Beswick v Beswick 


  Agreement to transfer business from Mr Beswick to nephew but had to provide a pension to both Mr and Mrs Beswick. Mrs Beswick was a 3rd party so when Mr Beswick died, the nephew breached the contract. She claimed SP.

  She was granted SP because damages wasnt available for 3rd parties. SP will be granted where damages do not reflect the actual loss
• What was the legal principle in the cases of Howard E Perry LTD v British Railways Board (BRB) and Behnke v Bede shipping?


  Both cases addressed the issue of Commerical weakness

  Howard v BRB- Strike action led to steel in short supply. BRB supported strikes so refused to deliver steel to Howard. BRB was denying the transfer for an indefinite period so was unjustified. SP was granted because steel was commercially unique since it was in short supply.

  Behnke v Bede- C wanted to buy a ship which was old and available at a discount. SP was granted because the goods were practically unique to C
• What was the principle and facts of Warner Bros v Nelson?

  The case was concerned with Personal Performance

  Bette Davis was contracted with Warner Bros but cannot perform for anyone else. Davis agreed to produce with a UK company stating. Warner Bros sought an injunction. An injunction was too harsh so a temporary one was given
• What was the legal principle and facts in the case of American Cyanamid Corp v Ethicon?

  Interlockory injunctions

  A had a patent for surgical instruments. B wanted to lauch it in the UK but would breach the patent so sough an injunction to restrict B until the trial of patent infringement bt was dismissed because patent infrangement was not made. However, was appealled because of the balance of convience (weighing inconvenience/ loss of each party to determine if the interim injunction should be allowed)
• What was the LP and the facts of Collier v Brown

  Inadequate consideration

  If there is an inadequate price (unless to prove fraud) is insufficient to prevent a court from establishing a SP to purchase land.
• What was the LP and the facts of Cannon v Hartley?

  No Consideration

  During seperation, Hartley wanted to settle money he was entitled to under a trust. Cannon would have interest from this but once cannon was entitled with the money, he refused to settle. Cannon was entitled to damages for breach of covenant but no SP to equity.

  No consideration= equity would not assist volunteer
• What was the legal prescent in Forrer v Nash?

  The courts cannot compel a person to do what it is impossible therefopre SP cannot be given
• What was the legal precedent establish in Flint v Brandon? 


  Execptions are possible for cases of impossibility
• What was the legal principle and facts of Lumley v Wagner?

  Personal performance

  Wagner was an opera singer contracted a Lumley's theatre for 3 months. Term of contract prevented her from singing for anyone else. Someone offered her more money to sing and agreed. Lumley sought an injunction. This was allowed because it had the same effect as SP. It cannot compel her to sing but compel her from singing elsewhere to encourage her to fufil her engagement