Equitable Remedies

Question 1

Specific performance

Answer 1

An order requiring a party to a contract to carry out his positive obligations under a contract

a remedy in personam; only awarded at full trial

Failure to comply with order for SP is contempt of court

Question 2

SP is only awarded where damages will not be adequate

Answer 2

Adderley v Dixon

Land - unique - SP available for either party

Pure personalty - SP generally not availabe

Question 3

SP available for stocks and shares not available on the market

Answer 3

Dubcuff v Albrecht

Question 4

SP available for articles of unusual beauty, rarity and distinction or of peculiar value to the claimant

Answer 4

A Ming vase - Falcke v Gray

Ornate door - Philips v Lamdin

Question 5

Contracts for service - can losses be quantified if the service is not performed?

Answer 5

Verrall v Great Yarmouth Borough Council - National Front conference - political effects of cancelling conference could not be compensated by damages - SP available

Evans v BBC - interim mandatory injunction granted to compel defendants to screen party political broadcast

Question 6

Specific performance will not be granter where performance requires constance supervision by the court

Answer 6

Co-operative Insurance v Argyll Stores - ongoing activity (keeping shop open during certain hours - SP not available)

Question 7

Contract for personal services - employment

Answer 7

s236 Trade Union and Labour Relations (Consolidation) Act 1992 - no court shall compel an employee to do any work or attend any place of work

Question 8

Contract for services - not employment

Answer 8

Equitable principles usually prevent enforcement:

• constant supervision - Ryan v Mutual Tontine
• against public policy - do not wish to turn contracts of service into contracts of slavery - De Francesco v Barnum
• it will lead to imperfections in performance - equity will not act in vain - CH Giles v Morris

Question 9

Court will not order an injunction for contract for services where it will have the same effect as SP

Answer 9

Page One Records v Britton

Question 10

As SP cannot be awarded against a minor, he cannot obtain such an order himself - mutuality

Answer 10

Lumley v Ravenscroft

Question 11

Clean hands - claimant must have performed or be willing to perform all his own obligations under the contract

Answer 11

Coatsworth v Johnson

Question 12

No statutory limitation period for bringing an action for SP, but unreasonable delay will defeat a claim - delay defeats equity

Answer 12

Eads v Williams

Question 13

SP may be refused if it would cause unnecessary hardship to one party or a third party

Answer 13

Patel v Ali

Question 14

Injunction

Answer 14

An order of the court requiring a person to refrain from doing a particular act, or, less commonly, to do a particular act.

• in respect to negative obligations; remedy in personam; High Court and County Court have power to order injunctive relief

Question 15

An injunction will only be granted to protect a recognisable legal or equitable right

Answer 15

Day v Brownrigg (house name - no injunction)

Paton v Trustees of British Pregnancy Advisory Service - no injunction to prevent wife having abortion

Question 16

Courts will only hear application for without notice injunction where case is overwhelming on the merits

Answer 16

Bates v Lord Hailsham

Question 17

Damages may be awarded in lieu of injunction

Answer 17

s50 Senior Courts Act
Damages will not be adequate where the action is repeated or continuous or where loss is unquantifiable in monetary terms

Question 18

Courts less ready to grant mandatory injunction

Answer 18

Wrotham Park Estate v Parkside Homes

Question 19

It would be oppressive to order mandatory injunction to demolish house as claimant had stood by as the house was built

Answer 19

Jaggard v Sawyer

Question 20

Freezing injunction and search orders

Answer 20

• generally only granted by the High Court

- often granted at interim stage of proceedings, to secure claimant’s position before trial

Question 21

Injunction - clean hands

Answer 21

Argyll v Agyll

Question 22

Injunction - willing to perform

Answer 22

Measures v Measures

Question 23

Injunction - delay

Answer 23

Bulmer v Bollinger

Shepherd Homes v Sandham

Question 24

Injunction - acquiescence - more than mere delay to suggest that claimant does not intend to rely on legal rights, on which the other party has acted to his prejudice

Answer 24

Bulmer v Bollinger

Shaw v Applegate - must be unconscionable to enforce legal rights

Question 25

Injunction - hardship

Answer 25

Maythorn v Palmer (to third party)

Question 26

Interim prohibitory injunctions

Answer 26

American Cyanamid v Ethicon: - claimant's case is not frivolous or vexatious and that there is a serious question to be tried - does balance of convenience lie in favour of granting or refusing interim injunction? - if neither favoured, preservation of the status quo ante

Question 27

Interim prohibitory injunctions - there must be a real question to be tried at trial - there is some prospect of success

Answer 27

Mothercare v Robson Brooks

Question 28

Interim prohibitory injunctions - balance of convenience

Answer 28

- adequacy of damage - loss of employment (Fellows v Fisher) - damage to goodwill of business (Associated Newspapers v Insert Media) - closing down of a business (Potters-Bollotini v Weston Baker) - preserving a substantial investment (Catnic v Stressline) - Special factors

Question 29

Status quo ante

Answer 29

State of affairs before the last change - generally favours the granting of an injunction as the last change is the commencement of the alleged wrong - Garden Cottage Foods v Milk Marketing Board

Question 30

If Claimant delays his application, status quo ante may be the alleged wrong and injunction will be refused

Answer 30

Shepherd Homes v Sandham

Question 31

American Cyanamid guidelines do not apply where trial of action is unlikely

Answer 31

Where granting/refusing injunction would effectivly dispose fully of the action in favour of whichever party is successful, an injunction will only be granted if the applicant's case is overwhelming on the merits (Cambridge Nutrition v BBC)

Question 32

American Cyanamid guidelines do not apply in defamation and defendant sets up defence of justification (unless bound to fail)

Answer 32

Greene v Associated Newspapers

Question 33

American Cyanamid guidelines do not apply against public authorities exercising statutory powers

Answer 33

Smith v IKEA - applicant needs extremely strong case on merits

Question 34

No publication should be restrained before trial which may affect Art 10, unless court is satisfied that the applicant is likely to establish that publication should not be allowed

Answer 34

Douglas v Hello

Question 35

American Cyanamid guidelines do not apply where it is a certain, plain and uncontested breach

Answer 35

Hubbard v Pitt

Question 36

Interim Mandatory Injunctions

Answer 36

- Stronger case needed Locabail v Agroexport approved test in Shepherd Homes v Sandham - court must feel 'a high degree of assurance that at trial it will appear that the injunction was rightly granted'

Question 37

Negative injunction which amount to SP awarded as damages were not adequate because D likely to be put out of business if injunction not granted

Answer 37

Sky Petroleum v VIP

Question 38

Interim injunction ordering grant of lease - distinguished Co-operative Insurance v Argyll as it was a single action, not a continuous activity

Answer 38

Capita Trust

Question 39

Search Orders

Answer 39

Mandatory injunctions designed to ensure that the defendant does not destroy or remove evidence Granting of search orders approved in principle by HL in Rank Film v Video Information Centre Now governed by s7 Civil Procedure Act 1997 and Civil Procedure Rules 1998

Question 40

Conditions for search order

Answer 40

Anton Pillar: - an extremely strong prima facie case - very serious damage, potential or actual, to the claimant - clear evidence that the defendant has incriminating documents or items in his possession and a real possibility that he may destroy them

Question 41

Real possibility or lack of may be inferred from the defendant's conduct

Answer 41

Lock International v Beswick - former employees who had openly said they were entering into competition, upstanding characters with families and mortgages - unlikely to destroy evidence

Question 42

List must be made of any items removed and the defendant given an opportunity to check it

Answer 42

Colombia Pictures v Robinson

Question 43

If premises likely to be occupied by a woman alone, one member of the party should be a woman

Answer 43

Universal v Hibben

Question 44

Search order should not require a defendant to disclose information which will incriminate him

Answer 44

Rank Fil v Video Information Centre

Question 45

Search orders are compatible with Art 8

Answer 45

Chappell v UK

Question 46

Freezing Injunctions

Answer 46

Prohibitory injunctions ordering the defendant not to dispose or of remove his assets from the jurisdiction before trial - in personam - no effect on assets themselves - first granted in Nippon Yusen Kaisha, followed by Mareva International Bulkcarriers - now governed by s37 SCA 1981 - granted where it appears to the court to be just and convenient

Question 47

Criteria for freezing injunction

Answer 47

Derby v Weldon: Claimant must show that - he has a good arguable case - defendant has assets within the jurisdiction (or without where extra-territorial order is sought) - there is a real risk that they will be removed or dissipated

Question 48

Need a good arguable case for risk of dissipation

Answer 48

Customs and Excise v Anchor Foods

Question 49

A good arguable case is one which is "more than barely capable of serious argument, but not necessarily one which the judge considers would have a better than 50% chance of success

Answer 49

Ninemia Corporation v Trave

Question 50

Claimant must make full and frank disclosure of all material matters and in a without notice application he should fairly state all the points that could be made by the defendant against his claim

Answer 50

Third Chandris v Unimarine

Question 51

Freezing injunctions applied for without notice will not normally be granted if the substantive proceedings have not yet been issued or an undertaking to issue proceedings provided with the injunction application

Answer 51

Fourie v Le Roux

Question 52

Order may freeze assets outside England and Wales without appropriate provision respecting the territorial sovereignty of foreign States

Answer 52

Derby v Weldon

Question 53

Can issue freezing injunction anywhere in world but need compliance from foreign country

Answer 53

Re BCCI SA (no9)

Question 54

Cannot order a freezing order where there is no substantive claim to the jurisdiction

Answer 54

The Siskina

Question 55

Will may be rectified where it fails to carry out testator's intentions due to clerical error or failure to understand his instructions

Answer 55

Pengelly v Pengelly

Question 56

Voluntary trust can be rectified

Answer 56

Re Butlin's ST

Question 57

Remedy of account may be used to require trustee to account for any incidental profit he has made in breach of fiduciary duties

Answer 57

Williams v Barton

Question 58

Remedy of account may be used to require an agent to account for a bribe/secret profit

Answer 58

AG for HK v Reid

Question 59

Remedy of account may be used to require a person to account for profits of unauthorised use of information in breach of confience

Answer 59

HM AG v Guardian Newspapers; HM AG v Blake