Term
| Are equitable remedies available as of right? |
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Definition
| NO - they are only available at the discretion of the court |
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Term
| What will the courts consider in determining whether or not to give a person an equitable remedy? |
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Definition
1) Will only be granted where the common law remedy of damages is inadequate
2) The court will consider equitable principles e.g. 'he who comes to equity must come with clean hands' |
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Term
| What type of obligations can specific performance (SP) be sought in respect of? |
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Definition
| Positive obligations ONLY (breach of negative obligation may, in appropriatye cases, be restrained by injunction) |
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Term
| What will happen in response to a failure to comply with specific performance? |
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Definition
| The breacher will be in contempt of court, which is punishable by inprisonment, or a fine. |
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Term
| Which remedies are available BEFORE a trial? |
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Definition
Interim injunctions
Search Orders
Freesing orders |
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Term
| What remedies are available AFTER a trial? |
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Definition
Specific performance
Final injunctions
Account |
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Term
| What remedy are you entitled to automatically if you win your case? |
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Definition
| Damages - if you want something instead of damages, you have to persuade the court to give you an equitable remedy |
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Term
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Definition
AN EQUITABLE REMEDY WILL ONLY BE GRANTED TO PROTECT A RECOGNISABLE LEGAL OR EQUITABLE RIGHT
C wanted an injunction to prevent his neighbour (D) from giving his house the same name as the C
HELD - since no legal or equitable right had been infringed, no equitable remedy could be granted (not a legal right to have exclusive use of a name for your house) |
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Term
| In an exam, what is the first thing you should do when you mention a remedy? |
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Definition
| Give a definition of what that remedy is. |
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Term
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Definition
| A court order requiring the D to carry out positive obligations under a contract. It is a purely contractual rememdy. If there is no contract / breach of contract, SP is NOT available. Only available for POSITIVE obligations. |
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Term
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Definition
| Damages must not be an adequate remedy - Adderley v Dixon [1824] |
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Term
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Definition
LEADING CASE ON SP
DAMAGES MUST NOT BE AN ADEQUATE REMEDY
IF DAMAGES ARE ADEQUATE, YOU WILL NOT GET SP
HOWEVER, BECAUSE LAND IS UNIQUE = MORE LIKELY YOU WILL GET SP FOR CONTRACTS CONCERNING THE SALE AND PURCHASE OF LAND OR CONTRACTS TO GRANT LEASES AND INTERESTS |
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Term
| At what point in the trial process can a person get SP? |
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Definition
| ONLY AVAILABLE AS A FINAL REMEDY, AFTER THE TRIAL |
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Term
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Definition
ARE THE ITEMS AVAILABLE SOMEWHERE ELSE?
ORDINARY ITEMS OF COMMERCE, OF NO SPECIAL VALUE OR INTEREST = NO SP
EVEN THOUGH THE CHAIRS WERE EXPENSIVE ANTIQUES
DAMAGES HELD TO BE ADEQUATE W.R.T BREACHED CONTRACT TO PROVIDE ANTIQUE GOODS.
C purchased antique chairs at auction
when C sought delivery, D refused
C sought SP
HELD - while valuable antiques in and of themselves, the chairs in question were not extraordinary, and nor were they exceptional in any way. Therefore, damages were adequate and SP was not granted. |
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Term
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Definition
ARTICLES OF UNUSUAL BEAUTY, RARITY AND DISTINCTION AND HARD TO FIND ANOTHER ONE = YES SP
D agreed to sell two ming vases to an antiques dealer for a fraction of their value
D discovered the true value of the vases & tried to back out of the agreement |
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Term
| W.R.T whether SP will be ordered on items of personal property, where do the courts draw the line on where SP will be awarded? |
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Definition
SOMEWHERE BETWEEN ANTIQUE CHAIRS AND A MINK VASE
Expensive antique chairs made by a famous C19th designer = no SP, as you could buy them elsewhere
Mink vase = yes SP |
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Term
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Definition
FOR TRULY UNIQUE ITEMS, DAMAGES WILL NEVER BE AN ADEQUATE REMEDY, IF THE ITEM IS TRULY UNIQUE, SP WILL BE AWARDED
Item in question = a battle horn which once belonged to King Canute
HELD - SP was awarded. |
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Term
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Definition
AN ITEM WHICH IS PECULIAR AND OF PRACTICALLY UNIQUE VALUE TO C = DAMAGES INADEQUATE = YES SP
TOOK INTO ACCOUNT THE FACT THAT THE SHIP WAS CHEAP, BUT THAT IT HAD A NEW ENGINE, AND THAT THE C NEEDED IT IMMEDIATELY, AND IT WOULD HAVE TAKEN A YEAR FOR A SIMILAR SHIP TO BE BUILT
C contracted to purchase a 2nd hand ship which exactly matched the specifications he needed to satisfy German safety regulations
D changed his mind
HELD - the ship was of peculiar and practically unique value to C. Because the ship was quite old & therefore cheap, but it also had a new engine which matched German regulations. No other ship like it available. |
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Term
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Definition
COURTS TAKE INTO ACCOUNT THE CURRENT CIRCUMSTANCES IN DETERMINING WHETHER A COMMODITY IS APPROPRIATE FOR SP, OR WHETHER DAMAGES WOULD BE ADEQUATE.
Petrol wouldn't usually be a unique commodity, but D tried to terminate a petrol sale contract during an oil strike. Therefore, at that particular time, supply was limited and C couldn't source petrol from anywhere else.
HELD - SP was granted, damages = inadequate |
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Term
| Verall v Great Yarmouth BC [1981] |
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Definition
CONTRACTS FOR SERVICES - COULD YOUR LOSSES BE QUANTIFIED IF THE SERVICE WAS NOT PERFORMED? OR DO YOU NEED THAT PARTICULAR SUPPLIER TO SUPPLY THE SERVICE?
E.G. HOST A CONFERENCE ON D'S PREMISES, WHERE NO OTHERS ARE AVAILABLE TO HOST
D had agreed to let C host their annual conference on their premises
D then discovered that C = National front
D tried to pull out
HELD - as the C could not find anywhere else that would agree to accomodate them, C were granted SP, and D had to follow through with the contract |
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Term
| Ryan v Mutual Tontine [1893] - w.r.t 'is the service clearly defined'? |
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Definition
SP WILL NOT BE AWARDED IF A CONTRACT FOR SERVICES DOES NOT CLEARLY DEFINE WHAT THE SERVICE ENTAILS
Porter required, by contract, to be 'in attendance' at a block of flats
HELD - 'in attendance' = too vague to award SP - what would he be required to perfom? |
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Term
| Posner v Scott Lewis [1987] - w.r.t 'is the service clearly defined'? |
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Definition
SP WILL BE AWARDED IF A CONTRACT FOR SERVICES CLEARLY DEFINES WHAT THE SERVICE ENTAILS
Porters contract for work = very specific... he was required to maintain the heating, take out the rubbish, etc..
HELD - because the scope of what the porter had to do was clearly defined, court were able to award SP |
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Term
| Co-Op Insurance Society v Argyll Stores [1997] |
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Definition
COURTS ARE UNWILLING TO AWARD SP FOR SERVICES WHICH WOULD REQUIRE CONSTANT SUPERVISION BY THE COURTS
COURTS ARE RELUCTANT TO AWARD SP IF IT INVOLVES AN ACTIVITY OF AN ONGOING NATURE
Court refused to order SP on a lease obligation to keep a supermarket open during usual hours of business, as it would require constant supervision by the court to ensure that this is happening. |
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Term
| W.r.t whether or not the court will award SP on contracts for services, when considering 'would the performance of the contract require constant supervision by the court', what is the general rule? |
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Definition
If the contract concerns an ongoing activity = need for constant supervision = no SP (e.g. keeping a shop open)... court don't want to get clogged up with an indefinite series of contempt rulings
If the contract is geared to a final result = no need for constant supervision = yes SP (e.g. painting a picture, making a wedding dress) |
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Term
| Can SP be ordered on a contract of employment? |
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Definition
| NO - SP for employees is prohibited by s236 Trade Union and Labour Relations Act [1992] |
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Term
| In an exam question, if you have a Claimant going for SP for the supply of a service from a company, what things do you have to consider in order to determine whether SP will be granted? |
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Definition
1) Could your loss be quantified if the service was not performed, or do you NEED the service to be performed by that supplier?
2) Is the service that you have contracted for clearly defined?
3) If SP were granted, would it require constant supervision by the courts (ongoing activity or result oriented?) |
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Term
| In an exam question, if you have a claimant going for SP for the supply of a personal service (by a particular individual), what things do the courts consider in deciding whether or not to award SP? |
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Definition
1a) Is it for the supply of a service by an employee of the C? Or is it for the supply of a service by a contractor? (if employee = NO - TULRA s236)
1) Could your loss be quantified if the service was not performed, or do you NEED the service to be performed by that supplier?
2) Is the service that you have contracted for clearly defined?
3) If SP were granted, would it require constant supervision by the courts (ongoing activity or result oriented?)
4) Would SP be aking to slavery?
5) If SP were granted, could it be defeated by poor performance? |
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Term
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Definition
| ABSOLUTE PROHIBITION ON COMPELLING AN EMPLOYEE TO WORK - NO SP FOR EMPLOYEES. |
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Term
| If you are dealing with a question which would require SP for a contractor to perform a service for you, what must you consider? |
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Definition
The courts are reluctant to award SP for any personal services, therefore, even though there is no prohibition for SP for contractors, the courts will still be wary about ordering it... policy factors may prevent SP for contractor.
(2 additional tests than there are for company's providing a service... 1) Akin to slavery... 2) Could SP be defeated) |
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Term
| If you are dealing with an exam Q and it isn't clear whether the person providing the service is an employee or a contractor, what should you do? |
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Definition
| Consider both possibilities... easy to deal with the employee in 1 sentence. Then go for all the tests in case they are a contractor. |
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Term
| De Francesco v Barnum [1890] |
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Definition
NO SP FOR PERSONAL SERVICE CONTRACTS, WHERE SP WOULD BE AKIN TO SLAVERY
ALSO, AS THE SUBJECTS OF THE CONTRACT WERE MINORS, THERE WAS NO MUTUALITY, THEREFORE NO EQUITABLE REMEDY WOULD BE AVAILABLE
in this case, it was held that 'akin to slavery' = contract for 7 years, subjects of contract were not allowed to marry or enter into employment without the consent of the D. |
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Term
| How many factors must you consider in determining whether courts will grant SP for personal services by a contractor (service by a specific individual)? |
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Definition
5
1) Adequacy of damages
2) Clearly defined
3) Supervision by the courts?
4) Akin to slavery
5) Could SP be defeated by shoddy performance |
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Term
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Definition
IN DECIDING WHETHER TO GRANT SP OF A PERSONAL SERVICE, COURT WILL CONSIDER WHETHER GIVING SP WOULD BE AKIN TO SLAVERY BY CONSIDERING... THE DAILY IMPACT OF PERSON UPON PERSON.
FACTORS TO CONSIDER = (none of the factors are decisive, but balanced together)
1)Proximity (will they be breathing down the contractor's neck)
2) Control (what degree of control will they have over contractor?
3) Has there been a relationship breakdown?
4) How long is it going to last for... years, or a week? |
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Term
| In determining whether SP for the supply of a personal service would be 'akin to slavery', what must you consider? |
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Definition
1) De Francesco v Barnum (7yrs, no marriage, no job)
2) Giles v Morris (daily impact of person upon person) |
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Term
| In determining whether SP for the supply of a personal service 'could be beaten by poor performance', what must you consider? |
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Definition
1)Equity does not act in vain (write the maxim down)
2) Giles v Morris - can the service be measured objectively or is it subjective? |
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Term
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Definition
IF THE SP COULD BE BEATEN BY POOR PERFORMANCE = NO SP
CAN THE SERVICE BE JUDGED OBJECTIVELY, OR IS IT MORE SUBJECTIVE?
IF IT IS SUBJECTIVE = LESS LIKELY TO GET SPECIFIC PERFORMANCE
e.g. a singer could sing too slowly, or out of tune etc.. |
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Term
| What are the two rules that come from Giles v Morris? |
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Definition
1) Akin to slavery measured by daily person on person imact - proximity, control, duration, relationship breakdown
2) Defeated by poor performance? Objectively or subjectively measured? |
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Term
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Definition
PRODUCED 2 TESTS FOR ASSESSING WHETHER COURTS WILL GIVE SP W.R.T CONTRACTORS
1) Akin to slavery measured by daily person on person imact - proximity, control, duration, relationship breakdown
2) Defeated by poor performance? Objectively or subjectively measured? |
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Term
| In considering whether the courts will give SP for the provision of a personal service by a contractor, what are the extra cases you have to know? (extra cases on top of the general SP tests) |
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Definition
1) De Francesco v Barnum
2) Giles v Morris |
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Term
| In determining whether SP for the supply of a personal service would be 'akin to slavery', what must you consider? |
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Definition
1) De Francesco v Barnum (7yrs, no marriage, no job)
2) Giles v Morris (daily impact of person upon person) |
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Term
| In determining whether SP for the supply of a personal service 'could be beaten by poor performance', what must you consider? |
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Definition
1)Equity does not act in vain (write the maxim down)
2) Giles v Morris - can the service be measured objectively or is it subjective? |
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Term
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Definition
IF THE SP COULD BE BEATEN BY POOR PERFORMANCE = NO SP
CAN THE SERVICE BE JUDGED OBJECTIVELY, OR IS IT MORE SUBJECTIVE?
IF IT IS SUBJECTIVE = LESS LIKELY TO GET SPECIFIC PERFORMANCE
e.g. a singer could sing too slowly, or out of tune etc.. |
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Term
| What are the two rules that come from Giles v Morris? |
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Definition
1) Akin to slavery measured by daily person on person imact - proximity, control, duration, relationship breakdown
2) Defeated by poor performance? Objectively or subjectively measured? |
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Term
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Definition
PRODUCED 2 TESTS FOR ASSESSING WHETHER COURTS WILL GIVE SP W.R.T CONTRACTORS
1) Akin to slavery measured by daily person on person imact - proximity, control, duration, relationship breakdown
2) Defeated by poor performance? Objectively or subjectively measured? |
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Term
| In considering whether the courts will give SP for the provision of a personal service by a contractor, what are the extra cases you have to know? (extra cases on top of the general SP tests) |
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Definition
1) De Francesco v Barnum
2) Giles v Morris |
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