EQUITABLE REMEDIES

EQUITABLE REMEDIES

1. ‘Equity will not suffer a wrong without a remedy’

   • Discretionary and granted at full trial or at an interim stage
     • Granted where common law remedies (damages) would be inadequate
       • Equitable remedies operate in personam, against the defendant personally

2. Specific Performance: compel defendant to perform obligation, only applicable to breached terms of contracts and only available at full trial and cannot be awarded at an interim stage Considerations:

   • Goods/obligation needs to be considered ‘unique’ (Sky Petroleum v VIP Petroleum supply of petrol during shortage no alternative supplier possible, Behnke v Bede Shipping Co delivery of specific ship as of peculiar and practical unique value to claimant) yet in certain circumstances order will not be granted
   • If obligation will require constant supervision of the court as claimant must continually return to court for successive orders (Co-operative Insurance Society v Argyll Stores)
   • Personal services as it may turn a contract for service into a contract of slavery (De Francesco v Barnum, now incorporated in s.236 Labour Act 92) although beware of distinction contract for service (enforceable, Posner v Scott-Lewis although equity will not act in vain so damages may suffice) and contract of service (unenforceable, Warner Bros v Nelson, Bette Davis)
   • Defences against SP being granted:
     • Cause hardship ‘amounting to injustice’ (Patel v Ali sale of house prevented due to seller’s illness)
     • Mistake and misrepresentation
     • Conduct of claimant as those who seek equity must come with clean hands thus claimant must prove willing and able to perform obligations (Cornish v Brook Green Laundry)
     • Unreasonable delay or laches may defeat equity (Lazard Bros v Fairfield Property/Leaf v International Galleries)
     • SP not granted after date of performance (Union Eagle v Golden Achievements)

3. Injunctions: perpetual (granted at conclusion of full trial hearing) or interim

   • Injunctions are more flexible than SP as they perform different roles: 3 types:
     • Prohibitive (prevent action), Mandatory (compel action, SP-ish) or Quia timet (prohibitive/mandatory, preventative: harm feared by claimant/threatened by defendant - does not need proof of actual harm)
       • Perpetual injunctions: (prohibitive) Veneables v News Group Newspaper prevent publication of identity and whereabouts of baby killer to uphold his HRA -98 rights (mandatory) ‘restorative’ to undo the wrong Jones v Stones
   • Interim injunctions aka interlocutory are temporary and lasts until end of trial, guidelines set by Lord Diplock in American Cyanamid Co v Ethicon:
     • A. There is a serious question to be tried: Morning Start v Express Newspapers ‘only a moron in a hurry’ would confuse the two
       • B. Damages are inadequate: 1. Would money be able to compensate and can the defendant pay? 2. If injunction given incorrectly, can the claimant make an undertaking in damages - will be an adequate protection (claimant’s inability to compensate not determinative in granting the injunction Allen v Jambo Holdings)
         • C. The balance of convenience requires the grant of an injunction: undue delay (although varies since subjective: Shepherd Homes five months delay defeated grant but in Bulmer v Bollinger 70 year ‘champagne’ delay did not), risk of doing injustice is weighed (Cayne v GNR) but each case turns on its own facts, although despite the guidelines in Series 5 Software v Clarke a review of all evidence disclosed was required, thus return to strong prima facia case placing higher burden of proof on claimant despite what Lord Diplock in Cyanamid wanted to avoid
   • Interim prohibitive injunction: 'High degree of assurance' that right to issue injunction (Locabail v Agroexport/Shepherd Homes v Sandham)
     • Considerations: Ex parte orders: (in the absence of the defendant) draconian, raised issues of fair trial (ECHR) Remedy of last resort, guidelines safeguards
       • Previous to Cyanamid test: heavy burden on claimant to show strong prima facia case, but result of Cyanamid test disputed: too much restriction judges discretion but also that status quo maintained as review of all evidence required to be disclosed for interim injunction grant --> Series 5 Software v Clarke.
         • Gray states that thus guideline has been ignored, flexibly used or superficial appearance, not altered substance. Thus some system of balance, but not yet fully achieved
     • Higher burden on the claimant to prove that interim mandatory injunction should be granted
   • Interim: Mandatory, Prohibitive, Search Orders (Anton Piller: one party not disclosed all docs), Freezing orders (Mareva: prevent defendant from removing assets)
     • Freezing orders: Good arguable case, the defendant has assets in the jurisdiction and real risk that without the order the assets will be removed or dissipated (Derby v Weldon)
       • Freezing orders: proprietary (rather than personal?) According to Lord Denning, it has that effect
     • Search orders: Defeats purpose to give notice, thus in balancing the interests of both parties and possible abuse thus considerations: an extremely strong prima facia case, extremely serious potential (or actual) harm to the claimant, clear evidence that the information or items are in the defendant's possession, a real possibility that they will be destroyed or removed without such order and a full and frank disclosure by the claimant of all material matters in the case (Anton Piller)

4. (Specific Performance, Injunctions) Rescission, Rectification and Account

5. Jurisdiction: s.37 SCA 1981