Please enable JavaScript.

Coggle requires JavaScript to display documents.

Equitable Remedies I (Specific performance (Property (Chattels ("…

- - - - Full trial
  - - - Though damages would be adequate for seller/grantor, the court treats both parties equally and so orders specific performance for either party
    - - "quality of uniqueness" - if property doesn't have this, then damages adequate - can also use if identical property can't be obtained
      - Pusey v Ousey (1684)
      - Falke v Gray (1859) - Ming vase - allowed
      - Cohen v Roche (1927) - antique chairs - not allowed - were not extraordinary and had only been purchased to be resold at a profit
      - Behnke v Bede Shipping Co Ltd (1927) - may work where goods of particular value to claimant - contracted to purchase a ship which precisely met German shipping regulation requirements - available at significant discount due to age - allowed
      - Sky Petroleum Ltd v VIP Petroleum (1974)
    - - Duncuft v Albrecht (1841) - may be granted for stocks and shares not available on the market
        
        E.g. where in a private company - Oughtred v IRC; Neville v Wilson
  - - - S236 Trade Union and Labour Relations (Consolidation) Act 1992) - specific performance for employement contracts prohibited
      - De Francesco v Barnum (1890) - against public policy - courts do not wish to "turn contracts of service into contracts of slavery" - Fry LJ
    - - Giles & Co Ltd v Morris (1972) - not allowed where may lead to imperfections in performance
        
        Also subjectivity - distinction made between technical services where obligations can be objectively defined and assessed, and artistic services where cannot know whether artist has deliberately performed their obligations badly, or just had a bad day
      - Verrall v Great Yarmouth BC - may be allowed where service irreplaceable - here could not find alternative premises and political effects of cancelling could not be compensated in damages
      - Sufficiently well-defined - contrast Ryan v Mutual Tontine Westminster Chambers Association (1893) where specific performance of contract to be a "porter" refused, with Posner-Scott v Lewis (1937) where allowed because relevant obligation was simply to "hire" a resident porter
        
        One off-event in comparison to ongoing obligations which were not well defined and would have required regular supervision
- - - - Courts less willing to grant mandatory injunctions - Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1974); Jaggard v Sawyer (1995)
    - - Interim
        
        "Holding the ring"
        
        Risk of infringing D's rights
        
        Balance between "on the one hand, the need to reduce the risk of harm to lawful rights pending litigation and, on the other... the imperative of impartiality which argues for non-interference prior to final judgement" - Zuckerman (1993)
        
        Civil procedure - justice between the parties
    - - Rare to be without unless case is overwhelming on merits - Bates v Lord Hailsham of St Marylebone (1972)
  - - - Not to be frivolous/vexatious - serious question to be tried
        
        Morning Star v Express Newspaper (1979)
        
        Low threshold - question of law to be decided with some prospect of success - Mothercare v Robson Books (1975)
      - Balance of convenience
        
        Adequacy of damages aka if IPI refused for C wins at trial, can C be compensated for pre-trial losses and can D pay - ir if IPI granted but D wins, can D be compensated for pre-trial losses and can C pay?
        
        Other factors
        
        Fellowes and Son v Fisher (1976) - loss of employment
        
        Associated Newspapers plc v Insert Media Ltd (1991) - damage to goodwill of a business
        
        Potters-Ballotini Ltd v Weston-Baker (1977) - closing down of a business
        
        Catnic Components Ltd v Stressline Ltd (1976) - preserving a substantial investment
      - Status quo ante
        
        "state of affairs before the last change"
        
        Favours claimant
        
        Garden Cottage Foods Ltd v Milk Marketing Board (1948)
      - Merits of case - won't consider unless balance of convenience is otherwise and it is apparent on the facts that the strength of one party's case is disproportionate
  - - - Approved in Locabail International Financial Ltd v Agroexport (1986)
    - - Faster alternative to specific performance
        
        NB not limited to contracts
- - - - But unreasonable delay will defeat claim - "delay defeats equity" - Eads v Williams (1854)
        
        What amounts to unreasonable delay depends on circumstances e.g. lengthy delay in seeking to acquire legal title excused if purchase is already in possession
        
        HP Bulmer and Showerings Ltd v J Bollinger SA (1977) - "inordinate" delay
  - - - "He who seeks equity must do equity" - claimant must be willing and able to carry out own obligations - Measures v Measures (1910)
  - - - Also necessary to show that the other party has acted to their prejudice in reliance on the acquiescence - HP Bulmer and Showerings Ltd v J Bollinger SA 1977)
      - Shaw v Applegate (1977) - for acquiescence to deprive a person of their legal rights the situation must make it dishonest or unconscionable for plaintiff to seek to enforce their rights