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Topic 3- Specific Performance Contracts for Personal Services (General…
Topic 3- Specific Performance
Contracts for Personal Services
April 2011, Question 8
Consider, with reference to relevant case law, the traditional reluctance of the courts to grant specific performance of contracts requiring supervision.
October 2016, Question 5
I do not think it should be assumed that as soon as any element of personal service or continuous services can be discerned in a contract the court will, without more, refuse specific performance… As is so often the case in equity, the matter is one of balance of advantage and disadvantage in relation to the particular obligations in question; and the fact that the balance will usually lie on one side does not turn this probability into a rule.
Consider how the courts have dealt with the specific performance of contracts for personal services. Support your answer by reference to relevant case law
General Principles
Contract requiring supervision
A contract that requires a party to perform an ongoing activity
IF a contract obliges one of the parties to perfom an ongoing activity, the court is unlikely to order the SP of that coninuing contractual activity
Court fear- should SP be ordered, they will become embroiled in supervising compliance w order on a constant basis
Flexible approach
Posner v Scott- Lewis
:
Facts: D was lessor of flats and had covenanted with the tenants that he would employ a resident ported
After porter ceased to be resident, tenants sought SP
Held; Breach of covenant
To order D to empliy a resident proter would not require an unusual degree of superintendence by the court
Granted SP
Whether or no a SP should be made depends on following considerations
Is there a sufficient definition of what has to be done in order to comply with order of the court?
Will enforcing compliance involve superintendence by the court to an unacceptable degree?
What are the respective prejudices or hardships that will be suffered by the parties if order is made or not made?
Stricter Approach in earlier case
Ryan v Mutual Tontine Westminster Chambers Association
:
Facts: P = lessee of flat of blocks, was beneficiary of D's covenant to provide a porter who would be 'constantly in attendance'
D appointed individual who was frequently absent
Held; P's action for SP failed because it would 'require the constant superintendence by the court
D suffering a loss
Cooperative Insurance Society v Argyll Stores
Facts:D agreed to conduct its business from an outlet in P's shopping centre
At time it was trading from he outlet at a loss
Decided to relocate elsewhere
Issue: P sought specific performance for agreement ordering D to carry on business in the centre
Held: SP refused
It is he possibility of the court having to give an indefinite series of rulings in order to ensure the execution of the order of Sp which has been regarded as undesirable
Distinction: Between orders which require D to
carry on an activity
such as running a business over extended period of time and orders which require them to
achieve a result
: poss of repeated applications for rulings on compliance w order which arises in the former case does not exist to anything like the same extent in the latter
Common objections
Order to carry on an activity= imprecision in the terms of the order
If the terms of the court order cannot be precisely drawn, the poss of wasteful litigation over compliance is increased
An order requiring D to carry on a business may cause injustice by allowing P to enrich himeslf at D's expense
D not suffering a loss
Wanze properties v Five star supermarket
Facts: Similar facts to above however, D was not running its business at a loss
Held; HC- noting P would suffer v serious financial detriment if D ceased trading and D had taken a deliberate commercial decision to relocate to new shopping centre 400 yards away
Granted interlocutory injunction mandating D to continue trading pending trial of the action
Contracts to Build/ Repair
Jeune v Queens Cross Properties
Tenants succeeded in obtaining an order of SP against their LL re a covenant to repair after a blacony at front of property had partially collapsed
Above conditions satisfied
Redland Bricks v Morris
: Clear the courts qould require detail on and see all that the D had to do
Woverhampton v Emmons
: Romer LJ set out 3 conditions that would have to be satisfied in order to establish an entitlement to an order of SP in respect of a contract to build/repair
P must estab:
The building work, of which it seeks to enforce the performance, is defined by the contract
The particulars of the work are so far definitely ascertained that the Court can sufficiently see what is the exact nature of the work of which it is asked to order the performance
The P has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of the contract by damages
The D has by the contract obtained possession of the land on which the work is contracted to be done
Rushbrook v O'Sullivan
: Made clear the
attitude of the courts is not always consistent
BUT- dominant view is that CONTRACTS TO BUILD/REPAIR SHOULD RARELY BE ENFORCED
Likelihood of SP hinging on two hings
Certainty of terms
Degree of supervision which would be required by court
Rainbow Estates v Tokenhold
: Concerned T's repairing covenant
Lawrence Collins QC said: A modern law of remedies requires SP of a tenant's repairing covenant to be available
in appropriate circumstances
No constraints of principle or binding authority against the availability of the remedy
Problems of defining the work and need for supervision CAN BE OVERCOME BY ENSURING THERE IS SUFFICIENT DEFINITION OF WHAT HAS TO BE DONE in order to comply with the order
Remedy should be available when damages are not an adequate remedy or when SP is the appropriate remedy
: Particularly important if there is substantial difficulty in the way of LL effecting repairs- LL may not have right of access to property to effect necessary repairs and the condition of premises may be deteriorating
Held; Consequences of making such an order were not forseeable and it would be likely be back to court with problems
Contracts Involving the Provision of Personal Services
Contract for service
Creates employer/employee relationship
Under a contract for services: Self employed person contracts to provide a service
COURTS RELUCTANT TO ORDER THE SP OF SUCH CONTRACTS BECAUSE:
APART FROM THE ISSUE OF ONGOING SUPERVISION
SUCH ORDERS WOULD HAVE EFFECT OF BINDING PARTIES INTO A CLOSER RELATIONSHIP AFTER MUTUAL TRUST AND CONFIDENCE ALREADY BROKE DOWN
However, whilst courts reluctant to compel a person to work against his will for or with another person, they may enforce an undertaking by that person not ot work for or with anyone else
Lumley v Wagner
: D agreed
to sign at P's theatre for a cerain period time (positive obligation)
Not to perform elsewhere during that time (negative obligation
Issue: She agreed to sing at another theatre for larger fee
P sought to restrain her from performing at the other theatre
Held: Noting D could not be forced to honour the positive obligation in her contract with P
Note: May be practical reality- effect of enforcing a negative obligation will force the D to perform positive obligation (choice to not work or perform the positive)
Yaps v Childrens University Hospital Temple Street
: Clark J said there are
very limited circumstances
in which the court will intervene to force a continuation of a contract of employment
Warner Bros v Nelson
: D agreed with P she would not act for another studio for period of 5 years
Held; Branson J enforced negative contractual obligation
The court will enfroce negative contractual obligations where this does not amount to ordering SP by requiring D either to work for P or to lie idel
Here enforcement of negative obligation did not amount to this
D could carry out other (admittedly less lucrative nonacting) work
Notwithstanding reluctance of the courts to order SP of contracts involving the provisions of personal services,
Lift Manufactuerers v Irihs Life Assurance
: McWilliam J ackowledged that, if there is no reason for the court to engage in ongoing supervision, this argument gainst enforcing such contracts cannot apply
Case Law
Reluctance v Rule
CH Giles and Co v Morris:
Mergarry J noted 'a strong reluctance' to order SP of such contracts as opposed to a rule against ordering SP of such contracts
-
Such a rule is plainly not absolute and without exceptions
Nor can it be based on any narrow consideration such as difficulties of constant superintendence by the court
Matters of opinion and judgement
e.g. Contract to sing- if signer sings, flat, sharp, too fast/slow, too loudly/quietly
Threat of committal would reveal itself as a most unsatisfactory weap- for who could say whether the imperfections of the performance were natural or self-induced?
To make an order with such possibilities of evasion would be vain, and so the order will not be made
However, not all contracts of personal services are dependent on matters of opinion and judgement
In general, no doubt, the invonvenience and mischief of decreeign SP of mostof such contracts will greatly outweigh the advantages- and SP refused
But
I DO NOT THINK THAT IT SHOULD BE ASSUMED THAT AS SOON AS ANY ELEMENT OF PERSONAL SERVICE OR CONTINUOUS SERVICES CAN BE DISCERNED IN A CONTRACT THE COURT WILL, WITHOUT MORE, REFUSE SP
Requirement for the continuous performance of service ahs the disadvantage that repaeated breaches may engender repeated applications to the court
The matter is one of the balance of advantage and disadvantage re the particular obligation in question
Breakdown in relationship
Carool v Dublin Bus
Facts: Serious breakdown in relations between parties
Held: Clark J - that even if such a limited jurisdiction exists it could only arise in circumstances WHERE IT IS CLEAR NO OTHER DIFFICULTIES COULD REASONABLY BE EXPECTED TO ARISE BY VIRTUE OF THE ORDER BEING MADE
Continuing trust and confidence
Hill v CA Parson and Co
:
Held: injunction granted against employer to restrain alleged wrongful dismissal of an employee, in circumstances where the employer had reluctantly been forced to do so due to pressure exerted by a trade union that employee had refused to join
Justified: that trust and confidence still existed
Ahmed v Health Service Executive
:
Laffoy J refused to order SP requirng D to appoint P consultant as she felt it was not practical to make such an order to provide surgical services to the public