Equitable Remedies

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Specific Performance

Back 1

- A court order compelling the defendant to perform their positive obligations under contract.

- Disadvantage: A full trial remedy, which can only be awarded after hearing all the issues in a case.

- Refusal to comply is a contempt of court.

Front 2

Day v Brownrigg

Back 2

Facts: Claimed for copyright of a house name.

Held: You need to have a genuine legal or equitable right to claim a discretionary equitable remedy.

Front 3

Robinson v Harman

Back 3

Facts: Specific performance case. Right to be compensated for loss at common law.

Held: You have a remedy of right to damages at common law.

Front 4

Adderly v Dixon

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Held: Test: Specific performance will only be granted where the award of damages would be adequate.

Front 5

Verall v Great Yarmouth BC

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Facts: Parties sought specific performance to provide a premises for a conference.

Held: Land is something that tends to attract specific performance because of it's uniqueness.

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Specific Performance in chattels cases. Look for 'quality of uniqueness' in the thing you have contracted for.

Back 6

Pusey v Pusey - A hunting Horn - Unique

Falcke v Gray - Ming Vase - Difficult to obtain elsewhere.

Cohen v Roche - Ornate Chairs - Ordinary article/No Specific Performance.

Behnke v Bede Shipping - Changes unique to parties on a vessel.

Front 7

De Francesco v Barnum

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Held: You cannot force an employee to work for you by way of specific performance. Would be slavery. Courts will consider the proximity of the parties when determining this.

Also see statutory provisions governing this: s.236 TULR 1992.

Front 8

Giles & Co Ltd v Morris

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Facts: Different for contracts for services (freelance). Look at whether what you are supplying is unique.

Held: Difficult, but not impossible. Might perform the contract badly.

Front 9

Ryan v Mutual Tontine

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Facts: Covenant for security guard and his duties.

Held: Not possible to enforce the covenant using SP.

Front 10

Posner v Scott-Lewis

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Facts: Covenant for security guard and his duties.

Held: The court could enforce such terms, providing conditions were met:

1. Sufficient definition?
2. Unacceptable degree of supervision?
3. Consider the harm to both parties?

Front 11

Co-op Ltd v Argyll

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Facts: Co-Op was contracted to stay open for certain hours.

Held: Followed Posner conditions, found that an unacceptable degree of supervision would be required.

Front 12

Injunction

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A court order compelling the defendant to undertake an act (mandatory) or to prevent the defendant from carrying out an act (prohibitory).

- Can be used across a broad range of civil wrongs.
- Can get interim or final injunctions.

Front 13

American Cyanamid Co v Ethicon

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Facts: Case giving guidelines over interim prohibitory injunctions.

1. Not frivolous/vexation - serious question to be tried.
2. Balance of convenience/adequacy of damages.
3. Status Quo Ante. (The position before the defendant started doing the offending act).

Front 14

Morning Star v Express Newspapers

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Facts: Key case of 1. frivolous/vexatious. Emphasis of newspapers slightly different.

Held: Ludicrous. There was no serious question to be tried. Only a moron would confuse the two papers.

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Balance of convenience

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Court will look at the consequences of granting an injunction and then the D wins at trial. Can C compensate losses and vice versa?

Not decisive, the court will look at other factors:
- Loss of employment (Fellows v Fisher)
- Damage to goodwill of business (Ass.Newspapers v Insert Media)
- Forcing a business to close (PB ltd v Weston Baker)
- Protection of substantial investment (Catnic comps v Stressline ltd)

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Garden Cottage Foods v Milk Marketing Board

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Held: The state of affairs before the last change, which is generally the alleged wrong of the defendant. This point favours the claimant.

Not conclusive and can be a problem if the defendant delays his application (Shepherd Homes Ltd v Sandham).

Front 17

Shepherd Homes v Sandham

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- 'High degree of assurance that at trial it would appear the injunction was rightly granted'.

- Interim Mandatory injunction is more difficult to obtain as it forces somebody to do something. American Cyanamid Guidelines do not apply.

- Faster alternative to specific performance. Not a contractual remedy, but has the same impact as specific performance.

Front 18

Parkin v Thorold

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Facts: Defences case. Vendor postponed twice.

Held: Delay, dither so he wasn't forced to purchase the land.

Front 19

Williams v Greatex

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Facts: 10 years had lapsed, but they had moved into the house. Specific performance merely a formality.

Held: Specific performance granted despite the delay.

Front 20

Duchess of Argyll v Duke of Argyll

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Facts: 'Clean hands' defence following 'unfair' or 'representable' conduct. Fell down a lift shaft. She was promiscuous after the accident. Easier than a two piece jigsaw. She sought an injunction forcing him to hand the photographs over.

Held: She did have clean hands in respect of that litigation despite the fact that it was her conduct that led to the divorce.

Front 21

Patel v Ali

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Facts: Concerned sale of land. Defendant was blind, pregnant, couldn't speak English and had one leg. Mr.Patel tried to enforce the contract so he could sell the land.

Held: A defence solely related to specific performance. Both parties must be able to perform both sides of the contract. If one cannot, it is undue hardship.

Front 22

Locabail v Agroexport

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Held: Confirmed the test in Shepherd Homes v Sandham that the claimant must be able to demonstrate that it is likely they will succeed at trial.

Front 23

Freezing Order

Back 23

A type of interim prohibitory injunction. Prohibits an individual from dealing with their assets before hearing. This injunction usually operates without notice.

Does not give a proprietary interest.
'Equity acts in personam' - Against people not property.

Front 24

Babanaft v Bassatne

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Usually a freezing order is awarded prior to judgement, but, as in this case, they can be awarded after it. Usually without notice.

Front 25

Shapira Order

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Something that usually accompanies a freezing order and requires the defendant to disclose their assets.

Front 26

What is an asset?

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Usually a deposit in a bank account. FOs can also operate in respect of:

Planes (Allen v Jambo Ltd - legal aid but still got injunction.)
Ships (The Rena K)
Machinery (Rasu Maritima)
Jewellery (CBS UK v Lambert)

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Guidelines for obtaining a freezing order

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Higher Threshold Test than American Cyanamid.

1. Good Arguable case 'not necessarily 50%+' (Ninemia Corpn. v Trave)
2. Grounds for believing D has relevant assets.
3. Risk of dissapation

- Objective assessment - Would reasonable man see a risk of dissipation? (Derby & Co v Wheldon)
- Evidence of misappropriation (BTA Bank v Ablyazov)

Front 28

Re BCCI

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Authority for the way that freezing injunctions can operate extra-territorially.

Front 29

Derby v Wheldon

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The claimant of a freezing order must show there are insufficient access within the country's jurisdiction.

Front 30

Iraqi Ministry of Defence v Arcepney Shipping

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Freezing orders do not give a proprietary interest. Because of this, you don't get priority on insolvency. (Cretanor Maritime v Irish marine management).

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Freezing order - Undertaking

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'Price paid for the freezing injunction'. Claimant could be required to underwrite the loss that the defendant might suffer.

- Third parties to the freezing order must be informed (Law Society v Shanks).

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Freezing order - Allowances

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- Living expenses (Z Ltd v A-Z)
- Business expenses (Normid v Ralph and Mansell)

Front 33

Search Order

Back 33

An Interim mandatory injunction compelling the defendant to let the claimant enter a premises under his control to:

- Inspect documents or other articles. (Yousef v Salama)
- Take custody of documents or other articles (Crest Homes plc v Marks)

Front 34

Bhimji v Chatwani

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Search orders stand 'At the extremity of the court's juridiction' (Scott J)

Front 35

Columbia Pictures v Robinson

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- Search orders are characterised by secrecy. Will not be done with notice. Their essence is surprise.

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What are the guidelines for obtaining a search order?

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Highest bar set of all injunctions. Need clear and compelling evidence.

1. Extremely strong prima facie case.

2. Damage, potential or actual must be very serious for the applicant.

3. Clear evidence D has documents and there is risk of destruction (Anton Piller KG v Manufacturing Processes).

Front 37

Safeguards for search order

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- Take nothing further than absolutely necessary to the case. You will be given a list.
- Between 9:30 and 17:30.
- Detailed record of materials taken by solicitors.
- Defendant should be present.
- If only female defendant present, need a female solicitor present.

Front 38

Chappell v UK

Back 38

- Search orders challenged in the ECHR. Possible breach of Art.1 Protocol 1, Art. 6, Art.8. All 3 are qualified rights.

- It was held in this case that because of the safeguards, human rights was not infringed.

Front 39

Account of Profits

Back 39

At Common Law: Make good losses caused to you. Compensatory damages

At Equity: Restore the Property/Account for Profits. Improperly received, withheld property, profits from use of property.