Equitable Remedies

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What?

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Discretionary remedies which unlike common law remedies are as if right and can be established by convincing court that it is fairer to give equitable remedy instead of/on top of common law remedies

Number of key remedies;

-specific performance

-injunction; mandatory or prohibitory

-freezing order

-search order

-account of profts

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Day v Brownrigg

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Establishes that in order to get a remedy, you need a recognizable legal or equitable right.

Could be breach of contract, nuisance, breach of confidence/copyright/ fiduciary duties

Just state the right

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Specific performance (SP)

*always do first*

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Definition? Court order compelling the D to perform positive obligations under a trust

A positive performance is wanting D to do something and D is not wanting them to so won't apply with SP

Crucially enforced, if D does not listen, the consequence can be from a fine to prison sentence after court produces document

Only available at full trial once established the breach of contract

The common law remedy is damages as established in Robinson v Harman and the court will use its discretion to grant SP when when damages aren't adequate--> Adderley v Dixon

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FIRST distinguish diff types of contract;

1. contracts for sale of property

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If dealing with very specific property e.g. land, the remedy is always unique--> Verrall v Great Yarmouth

*unlikely in exam

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2. Contracts for sales of goods

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If dealing with chattels, you must show these goods are unique and that you cannot buy alternatives so c wants the specific goods

Pusey v Pusey-->contract for sale of battle horn which belonged to a specific king so person buying it cannot buy equivalent so c only wanted that as it was unique and special so specific performance will be granted

if belonged to celeb, use this

Falke v Gray--> contract was for ming vase and obvs not just one but there are very rare and none being made anymore and no being made anymore. Courts held it had unusual rarity so granted SP

If in exam something is rare/not made no more use this case

CONTRAST ABOVE with Cohen v Roche--> antique chairs were not that rare that couldn’t buy an alternative. Also courts said on facts that c just wanted to sell them on so obvs weren’t that special to c so courts distinguished this with above

if in exam you can buy alternative or want to sell it on so not special to c, use this and don’t grant sp damages would be sufficient

Behnke v bede shipping--> not rare but facts of case make it seem valuable to c

Here c agreed to buy ship from d which was nothing special and cheap and old but c wanted it bc engine met req of c business so c wouldn’t have to alter it. Would be diff for c to find equivalent so courts said to this c it is very important so c was granted SP to be given the ship

Sky Petroleum v VIP petroleum-->contract for purchase of petrol which during a strike was very difficult to get hold of and became something unique and special so SP granted

if something becomes hard all of sudden to get hold of like in strike use this case

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3. Contracts for services

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**s236 TULR(C)A 1992--> no specific performance for employment contract

e.g. if lecturer decided didn’t want to work anymore, no one can force her as employment contract is not specifically enforceable

Unlikely in exam.

De Fransesco v Barnum--> must not be 'akin to slavery'.

Forced labour and young kids and too many restrictions.

In exam look for weird terms in pq

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Assuming it's not akin to slavery or employment contract, courts will allow SP for contracts for services if..

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Verrall v Great Yarmouth--> services must be irreplaceable

politicians tried to hire of conference centre and no one else wanted to let them hire so when canceled contract, bc of who they were and in short period of time, it was impossible

Giles v Morris--> considered following factors in addition to services being irreplaceable;

1. Services well-defined

courts must write on order precisely what c needs to do to enforce it.

--> ryan v mutual tontine (wording not precise so could not be specifically enforced) COMPARE WITH--> Posner v Scott-lewis (wording was precise so could grant sp)

2.Will courts require constant supervision by courts?

If it's a one-off service, not an issue but if long time obligation, d may have to keep going back to courts so sp useless

--> Cooperative insurance v argyll stores;

d main shop in shopping centre which wanted to leave but had long term lease so courts had to constantly bring them back for breach so sp not granted

3. could d deliberately perform badly? is it artistic?

-->Giles v Morris; equity won't act in vain.

If subj, courts won't be able to tell if good or bad HOWEVER if technical services then yes

*If services are mixture of two, probs unspecifc enough and won't grant sp

4. will c be req to work in close proximity? Will it break rhsip or has it already?

--> Fransesco v barnum e.g. bc lived together

so uncomfortable to work in proximity

ALL HAVE TO BE SATISFIED and weigh up everything w/comparison with facts of cases

**mix and match cases from goods/services

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Injunction;

Mandatory injunction

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A court order compelling D to undertake an act i.e. positive order

like sp except not dealing just with breach of contract

another diff is MI is interim so can be given now but SP is to be given after trial only so final

**injunctions can be either final or interim

***injunctions can be either with notice (d aware of application) or without notice (after order granted d is told)

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Prohibitory injunction

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A court restraining D from undertaking an act i.e. negative order

e.g. tort of nuisance

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Interim mandatory injunction (IMI)

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Sky petroleum v VIP petroleum--> e.g. of IMI which was granted bc so urgent

Shepherd home v sandham--> req to apply IMI;

'High degree of assurance that at trial it will appear the injunction was rightly granted'

*^approved in Agroexport

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Interim prohibitory injunction (IPI)

( Americal Cyanamid v Ethicon)

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As trials take up to 12 months, if urgent, you want to prevent further damages pending trial

Test from Americal Cyanamid v Ethicon:

1. serious q to be tired.

-case not be frivolous/vexatious and simply sue d bc dislike him

-just have genuine reason to bring case- low threshold--> morning star v express newspapers

2. balance of convenience.

two factors but 4 q toconsider;

firstly, if injunction was refused but c wins at trial.... can c be compensated for pre-trial losses and will/can d pay damages?

Then consider what would happen if the injunction was granted but c loses at trial, can d be compensated for pre-trial losses and can c pay damages?

3. other factors;

Fellows and sons v fisher; loss of employment

Asscociated newspaper v insert media; damage to goodwill of business and detrimentally affect rep

Potters-Ballotini v Weston-baker; closing

down business entirely

catnic components v stressline; preserving substantial investment

4. status quo ante

established in Garden cottage foods v milk marketing board-->state of affairs before the last change- puts parties back in position before last act complained of

**usually favours c as last act is whatever c is suing d for

**however if c delayed to say something, it favours d

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Freezing order

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A specific type of interim prohibitory injunction to stop d dealing with their assets.

Effectively prevents dissipation/removal

Usually awarded pre-trial and granted without notice to d to ensure that d can pay damages at full trial

therefore, it is VERY unlikely for courts to bless c with it unless ensured right thing to do

Effectively, mostly used if worried about honesty of person

If granted but failed trial, c has to pay compensation like IPI

CBA UK v Lambert--> c may seek an order against choses in action (a right to sue)

The angel bell--> c only receives personal rights over assets

*try to find assets which someone else has control over so they will stop d using it

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When will courts exercise its discretion to grant a freezing order?

Derby &co v wheldon

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Derby v wheldon;

1. threshold; good arguable case

2. grounds for believing d has relevant assets in the jurisdiction

3. real risk of dissipation;

-obj test so look at facts for evidence

-evidence of misappropriation- JBC BTA Bank v Ablyazov

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What happens if freezing order is granted?

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C must give promise to pay damages at final trial if rejected

D is allowed living expenses and business expenses if needed

3rd parties should be informed- law society v shanks

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Search order

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Specific type of interim mandatory injunction requiring d to give permission to c to enter his premises and search for.seize specified assets

Granted without notice

May need this search order to seek evidence to support case at final trial or

..when you're concerned that d will hide/destroy evidence so cannot be informed or may hide it--> Columbia picture industries v robinson

*but may always be prepared*

c does not have right to force entry as d may refuse permission but will then be in contempt of court and should probs get lawyer involved

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When will courts exercise its discretion to grant a search order?

Anton piller KG v manufacturing processes

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Anton piller KG v manufacturing processes;

1. REALLY Strong and persuasive prima facie case.

very high threshold (assuming u can get over it..)

2.Damage (actual or potential)

must be very serious for c (similar to balance of convenience test for IPI (compensation))

3. 'clear and compelling' evidence that he is untrustworthy and will clear/destroy evidence -must look at facts of case

--> Lock international v beswick--> 'FLY BY NIGHT VIDEO PIRATE'

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Safeguards on carrying out search order

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· No further than the minimum extent necessary to achieve the purpose for which it is granted;

· Detailed record of the materials should be made by the solicitor;

· No material should be taken unless it is clearly covered by the terms of the order;

· Between 09:30 and 17:30;

· Defendant should be present;

· If a female D alone, then should be a female solicitor -

*****D CAN MAKE EMERGENCY APPLICATION CHALLENGING ORDER AS DEFENCE.

IF UNSUCCESSFUL, HE MUST COMPLY OR WILL BE IN CONTEMPT OF COURT

*This is so unlikely though lol bc of human rights as established in Chappel v UK, but aslong as safeguards are complied with, its ok

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Account of profits

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A personal remedy requiring d to give up profits

May be seeked when;

-breach of fiduciary duty

-breach of confidence.copyright

**unlikely for breach of contract, unless akin to breach of fiduciary duty

Attorney general v blake is good example of account of profits remedy

Only available once case has been decided at full trial NOT INTERIM

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exam STRUCTURE

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1. What is the legal cause of action?

e.g. breach of contract / breach of copyright / nuisance

*No need to discuss substantive claim in detail – Just identify

2. What remedies will claimant seek at final trial?

• Mention common law remedy briefly if appropriate – Then discuss any relevant equitable remedies

• What test does the court apply?

• Is the claimant likely to succeed?

3. Is there an urgent need for an interim remedy?

• What test does the court apply?

• Is the claimant likely to succeed?

• If not, could an alternative remedy achieve a similar result?