Equitable Remedies Flashcards Preview

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Flashcards in Equitable Remedies Deck (53):
1

What are the 6 categories of equitable remedy?

Specific performance
IMI
IPI
Freezing order
Search order
Account of profits

2

What are the 4 types of injunctive relief?

Prohibitory injunction
Interim prohibitory injunction
Mandatory injunction
Interim mandatory injunction
* Some of these are available with and without notice

3

Will an contract for land be obligated under SP?

Yes as unique - Verral v Great Yarmouth

4

When will a contract for property be enforced with SP?

- If the property is unique
- If damages would not suffice

5

Pusey v Pusey

King Canute's hunting horn is unique

6

Falcke v Gray

Ming vase judged to be unique as item of 'unusual beauty, rareity and distinction' so would be very hard to obtain elsewhere

7

Cohen v Roche

SP for Hepplewhite Chairs not obligated as classed as 'an ordinary article of commerce'

8

Behnke v Bede

SP possible if the item has a 'unique value to the claimant' - In this case a bespoke ship

9

Sky Petroleum v VIP

Due to OPEC oil crisis property could not be obtained elsewhere so damages were insufficient to remedy breach

10

Neville v Wilson

Stocks and shares not on market were judged a personalty so SP was available

11

When will the court use SP to enforce a contract for services?

- Verral v Great Yarmouth;
- Where damages unquantifiable so inappropriate
- Where no alternative service so judged to be unique

12

Co-op v Argyll Stores

SP will not be granted where it would require constant supervision as the court would be required to provide a series of indefinite quasi-criminal rulings for contempt of court
- This would overburden the courts
- lord hoffman

13

Ryan v mutual tontine

A contract will not be enforced where it would require 'constant supervision'
- if it is a one off contract the courts may enforce it

14

De Francesco v Barnum (in relation to contract for services)

Equity will not enforce contracts where it would be akin to enforcing a contract for slavery. However whether this is a contract for slavery is a question of nature of the services and payment - LJ Fry

15

CH Giles v Morris

Equity will not enforce performance where it would result in imperfections in performance. Equity will not act in vain. Megarry J provided the example of a singer. it would be hard to enforce such a contract as the singer could perform very poorly and this would still be performance of the contract

16

Will equity enforce a contract for employment?

No - S236 TULRA 1992
De Francesco v Barnum - Equity will not enforce a contract for slavery

17

What general defences are there to a grant of SP?

Mutuality - Lumley v Ravenscroft
Clean hands - Coatsworth v Johnson
Delay - Eads v Williams
Hardship - Patel v Ali

18

Quia timet

A pre-emptive injunction for where a right will be infringed imminently

19

General defences to the award of an injunction

Claimants conduct - Measures v Measures
Delay - Bulmer v Bolinger
Acquiescence - Shaw v Applegate
Hardship - Maythorn v Palmer (hardship to 3rd party)

20

Prohibitory injunction

- Awarded at the discretion of the court
- Will not be awarded i f damages are adequate
- Will not be awarded if breaches an equitable maxim

21

Mandatory injunction

- Awarded at discretion of the court
- Rare remedy as most IMI are better awarded as SP of an obligation under a contract

22

How is an IPI awarded?

American Cyanamide guidelines;
- Claim is not frivolous or vexatious
- Where does the balance of convenience lie? (damages/undertaking/ability to pay)
- If no balance of convenience then maintain the status quo

23

Morning Star v Express Newspapers

Frivolous or vexatious claim will be rejected

24

Other factors the court will consider in awarding an IPI;

- Loss of employment - Fellows and Son v Fisher
- Damage to goodwill of a business - Associated Newspapers v Insert Media
- Closing down of a business - Potters-Ballotini v Weston-Baker
- Preserving a substantial investment - Catnic v Stressline

25

Garden Cottage v MMB

Maintenance of status quo will generally mean undoing the last act

26

Cambridge Nutrition v BBC

If a trial is unlikely to ever occur then the courts will not award an IPI

27

How is an IMI awarded?

Shepherd Hoems v Sandham (as approved in Locabali v Agroexport)
- Requires high degree of assurance that at trial a mandatory injunction will be granted
- SP can only be granted at full trial, so in some ways can be regarded as a pre-emptive SP where it is very likely SP will be granted

28

Page One Records v Britton

The Troggs (band) terminated a contract of employment and employee sought an injunction to prevent termination. Not granted as to grant injunction would be similar to granting SP, which is not possible for contracts of employment. Therefore injunction will not be granted where SP would not be granted

29

Evans v BBC

IMI granted as SP would be too slow. SP likely as contract for service from BBC was judge to be unique in a similar vein to Verral v Great Yarmouth

30

Capita Trust v Chatham Maritime

IMI granted requiring acceptance of M & S tenancy as this was contracted and would be granted under SP as it is land so unique

31

How is a search order granted?

Anton Pillier v Manufacturing Proecsses
- Extremely strong prima facie case
- Very serious damage
- Clear evidence of incriminating documents in possession and real possibility of destruction

32

Lock v Beeswick

- Evidence of defendant's dishonesty and fraud can be used as tangential evidence that they will destroy/dissipate the asset.
- In the actual case search order overturned as appelants not judged to be 'fly by night pirates' but people with jobs and mortgages
- Hoffman - there is a need for a proportionality consideration of the perceived threat and the potential measures

33

Chappell v UK

Search orders not an art 8 infringement as there are appropriate safeguards in place. The defendant can also challenge the search order

34

EMI v Pandit

Search order granted

35

How is a freezing order granted?

Derby v Wheldon
- Good arguable case
- Grounds for believing D has the relevant assets
- Risk of dissipation

36

Ninemia

- Not a calculation of 51% probability of success
- The case must be more than capable of serious argument

37

Re BCCI

Can pursue assets which are not in the jurisdiction (however pursue assets in the jurisdiction first)
Courts will not grant a freezing order in other jurisdictions if it would be unduly oppressive

38

Customs v Anchorq

Must be a good arguable case that the items will be dissipated

39

Derby v Wheldon

Objective assessment of risk of dissipation

40

JSC BTA Bank v Ablyazov

Risk of dissipation can be judged from evidence of misappropriation

41

Law Society v Shank

- Third parties must be informed of a freezing order
- Violation of a freezing order will be a contempt of court

42

LTD v A-Z and AA-LL

Living expenses granted udner freezing order

43

Third Chandis

Claimant should disclose all material matters in a 'without notice' application. State points which could be made agaisnt application
- Debt dodger is seen as a dishonest person

44

Fourie v Le Roux

Freezing order without notice granted if substantive proceedings have been issued

45

Boardman v Phipps

Profits from use of property may be recovered

46

Mothercare v Robson

For an IPI the case must have some chance of success

47

AG v Guardian

IPI likely to be granted to prevent publication, as injunction not possible once published. Equity will not act in vain

48

Columbia Pictures v Robinson

Only allowed to take specific items in search order

49

Adderly v Dixon

Specific performance is only granted where damages are inadequate

50

Day v Brownrigg

Equitable or legal right must be infringed

51

Argyll v Argyll

Breach of confidence as basis for equitable remedy

52

Defrancesco v Barnum (2)

Contract not enforced as;
- length of contract - 7 years
- subjects of contract not allowed to marry
- or enter into employment without consent

53

Giles & Morris (slavery)

Court will not enforce contract for slavery
- Slavery judged from day to day impact on the person
- factors;
Proximity
Control
Relationship breakdown
Length of contract