EXAM NOTES - Equitable Remedies

Question 1

why do people have the right to a remedy?

Answer 1

remedies arise out the infringement of a recognisable legal or equitable right
- Day v Brownrigg

Question 2

define specific performance and give the general test

Answer 2

• Order to perform positive contractual obligations

- Test: Adderly v Dixon – are damages an inadequate remedy here?

Question 3

how does the court determine if SP is appropriate for sale of goods contracts?

Answer 3

• if the item is unique, SP usually granted
• Cohen v Roche; antique chairs were ‘ordinary articles of commerce’
• Falcke v Gray; Ming vases were of ‘unusual beauty, rarity and distinction
• Behnke v Bede; is the item of ‘peculiar value’ to C?
• Lotus v Lamplough; increase in value can go towards the goods being rare and unique

Question 4

how does the court determine if SP is appropriate for service contracts?

Answer 4

• Verall v Great Yarmouth – must show the service is irreplaceable and damages would therefore be inadequate e.g. specialist/famous/unique designs/part completed already

Question 5

how does supervision relate to SP and contracts for services?

Answer 5

• Ryan - Constant supervision required?
• Co-op v Argyll – unacceptable degree of supervision required? Sequence of contempt of courts?
• Posner v Scott-Lewis
  o 1. Sufficient definition of what has to be done?
  o 2. Relative harm to both parties?

Question 6

How do contracts for personal services with contractors relate to SP

Answer 6

• De Francesco v Barnum could it be akin to slavery to grant SP?
• Ryan v Mutual Tontine - constant supervision required?
• Giles v Morris could the purpose of the contract be defeated by deliberate poor performance? Equity will not act in vain.
• Co-Op v Argyll many contempt proceedings needed?

Question 7

how does the court determine if SP is appropriate for sale or rental of land contracts?

Answer 7

• Land is almost always unique so SP quite easy to get

- Verall v Great Yarmouth BC – available even for people who are renting

Question 8

what is the main drawback of SP?

Answer 8

only available at trial - slow

Question 9

define an IMI

Answer 9

interim mandatory injunction

• Order requiring the D to act in some way
• Unlike SP available as a pre-trial remedy

Question 10

what is the test for IMIs

Answer 10

• Shepherd Homes v Sandham: is there a ‘high degree of assurance’ that the remedy is rightly granted? ie is the case likely to win at court?
• Locobail v Agroexpert – confirmed the ‘high degree of assurance’; no need for the American Cyanamid v Ethicon test

Question 11

define an IPI

Answer 11

interim prohibitory injunction

- Order restraining the D from acting in some way

Question 12

what is the test for whether IPIs should be granted?

Answer 12

American Cyanamid v Ethicon
o 1) must be neither frivolous (trivial) nor vexatious (abuse of process/malicious); must be a serious matter
o 2) balance of convenience
o 3) Courts can consider additional factors too

Question 13

give an example of a frivolous or trivial claim for IPIs

Answer 13

 Morning Star v Express Newspapers – Only a ‘moron in a hurry’ would confuse the papers

Question 14

how does the balance of convenience relate to whether the court grants an IPI?

Answer 14

 If IPI is wrongly refused, will damages be adequate for C? e.g. if the bike is sold on? Will D be able to pay adequate damages?
 If IPI is wrongly granted, will damages be adequate for D? e.g. if bike is prevented from being sold on? Will C be able to pay adequate damages?

Question 15

what additional factors will courts look to when deciding whether to grant an IPI?

Answer 15

 Default position is that the court will preserve the status quo ante Garden Cottage Foods v MMB
 What will be the effect on a party’s business if not granted? Potters Ballotini v WB
 Has there been significant investment by C or D? if so, courts may act to protect it Catnic v Stressline
 Fellows and Son v Fisher loss of employment can be considered
 Associated Newspapers v Insert Media ¬ loss of business goodwill can be considered

Question 16

what is a search order?

Answer 16

• Order to allow C access to D’s property for search and seizure
• Damaging so high standard needed
• Never given with notice
• also to get back materials about to be published in breach of copyright (EMI v Pandit)

Question 17

what is the test for a search order?

Answer 17

Anton Piller v Manufacturing Processes

• 1) extremely strong prima facie case
• 2) serious damage to C
• 3) evidence of D’s possession and risk of evidential destruction OR disposal by D – look for a ‘fly by night video pirate’ (Lock v Beswick) e.g. evidence of lying or intention to leave the country

Question 18

What is a freezing order?

Answer 18

• Order preventing D dealing with his assets from Mareva v IB
• Aims to stop a judgement against D being a ‘futile gesture’ Siskina v Distos Compania
• Usually awarded before judgement without notice

Question 19

what is an asset for the purposes of a freezing order

Answer 19

• Anything of value eg
• Aeroplanes
• Ships

Question 20

What case gives the test for whether the court will grant a freezing order?

Answer 20

Derby v Weldon

Question 21

what is the jurisdiction for freezing orders?

Answer 21

• Can theoretically operate outside the jurisdiction but courts will not grant if “unduly oppressive” on D Re BCCI
• And C must show D has insufficient assets within the jurisdiction Derby v Weldon

Question 22

what do courts usually demand before allowing a freezing order?

Answer 22

• an undertaking; where C underwrites to a degree the losses D may suffer through the freezing order

Question 23

define an account of profits

Answer 23

• Order requiring D to pay over unauthorised profits from a breach
  o Account for profits from breach of confidence AG v Guardian Newspapers (No 2)

Question 24

How does SP work against employees

Answer 24

• No SP against employees s236 Trade Union and Labour Relations (Consolidation) Act 1992
  o But statute does not apply to contractors

Question 25

Why was the contract in De Francesco v Barnum equivalent to slavery?

Answer 25

Contract for 7 years + could prevent employees marrying + could not enter into employment without hirer’s consent

Question 26

What are the defences to equitable remedies?

Answer 26

• clean hands; C must have performed or be willing to perform his obligations Coatsworth v Johnson
• delay defeats equity(but depends on circumstances); Eads v Williams,
• unnecessary hardship to one part or third party; Patel v Ali
• acquiescence; has C acted in a way that suggests he will not claim his rights, and has D consequently relied on that? Bulmer v Bollinger

Question 27

could a search order infringe HR?

Answer 27

no - Chappell v UK: legitimate aim and proportionate

Question 28

what is an injunction granted at trial called?

Answer 28

a final or perpetual injunction (Warner Bros v Nelson)

- need not last for ever - can just be for a period of time

Question 29

What is the rule about granting an injunction, its effect, and SP

Answer 29

injunction may not be granted - if it would have the same effect as specific performance
–Page One Records v Britton

Question 30

What case established freezing orders

Answer 30

Mareva v IB

Question 31

What is the test for whether the court will grant a freezing order?

Answer 31

Derby v Weldon
- 1) good arguable case (likely to win)?
- 2) are there relevant assets in the jurisdiction?
- 3) real risk of dissipation without one?
o Customs & Excise v Anchor Food - ‘real risk’ means ‘good arguable case’

Question 32

Explain the elements of the test for a freezing order

Answer 32

o ‘good arguable case’ = Ninemia v Trave a) capable of serious argument + b) not necessarily more than 50% chance of success

o Evidence of misappropriation suggests a sufficient risk of dissipation JSC Bank v Ablyazov- e.g. dishonesty or an intention to leave the country