Equitable Remedies

scott.james.smit
Flashcards by scott.james.smit, updated more than 1 year ago
scott.james.smit
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(Equity and Trusts) Flashcards on Equitable Remedies, created by scott.james.smit on 04/22/2013.

Resource summary

Question Answer
Paton v British Pregnancy Advisory Services (Paton) Principle of injunctions that some right of the applicant must be affected
Redland Bricks v Morris (Redland Bricks) Principles governing injunctions, Mandatory injunctions will not be granted if they impose hardship on D or are requiring some supervision.
Regan v Paul Properties (Regan) Principles governing injunctions, the injunction must not cause hardship to D, test of oppression, not balance of convenience
American Cyanamid v Ethicon Ltd (American Cyanamid) Balance of Convenience Test 1) is there a serious issue to be tried 2) would the applicant be adequately compensated by damages awarded at trial 3) would respondent be liable to pay amount of any damages awarded at trial 4) if an II were to be granted, would respondent be adequately compensated by applicant's cross-undertaking in damages 5) where does the balance of convenience lie
what happens if an II is awarded? Applicant will generally be required to give the court a cross-undertaking in damages (i.e. the promise to pay R for any loss incurred as a result of injunction if A's claim fails)
What happens if court decides that BOC test would lead to unjust results? NWL Ltd v Woods -courts look at degree of likelihood that claim would succeed at full trial and take this into consideration during BOC test. Cambridge Nutrition Ltd Court will assess merits of the case and look upon the facts and contract Series 5 Software Court could take into account the strengths of each party's cases when case of fact and law is simple
NWL Ltd v Woods BOC test alternatives, courts will look at likelihood that claim would succeed at full trial and take this into consideration on BOC
Cambridge Nutrition Ltd v BBC (Cambridge Nutrition Ltd) -Current affairs broadcast -CN tried to get an II to prevent broadcast airing a govt. report -if successful, action would be stopped there and then HELD: II would be the same as a final injunction -court decided to assess merits of the case -on the facts, contract entered into, C were not granted I and BBC allowed to air programme.
Series 5 Software v Clarke (Series 5 Software) Court could take into account the strengths and weaknesses of each party's case when case of fact and law is simple
Human Rights Act 1998 s12(3) no relief is to be granted to restrain publication before a trial unless the court is certain that the applicant is LIKELY TO ESTABLISH the publication should not be allowed. PARTICULARLY HIGH THRESHOLD, MORE SO THAN AMERICAN CYANAMID
Special Types of II Search Orders Freezing Orders
Search Orders Anton Piller KG -Granted ex parte -permit C to enter premises of D before trial to search for relevant docs THREE CONDITIONS: 1) strong Prima Facie Case 2) Damage, potential or actual, very serious for applicant 3) Clear evidence that D possesses incriminating documents and possibility these may be destroyed before trial
what safe guards are there for the D in Search Orders a) service on D by solicitor with all docs b) solicitor obliged to tell D terms of the order and advise to seek independent advice c) D may apply to court for discharge d) Undertaking as to damages e) Undertaking to issue proceedings if not already done f) cards on the table approach
Freezing Injunctions Designed to prevent D from disposing of any assets which would otherwise be available to meet the C's claim Derives from: Mareva Compania Naviera SA v International Bulkcarriers SA
Mareva Compania Naviera SA v International Bulkcarriers SA (Mareva Compania) Origin of freezing orders
Supreme Court Act 1981 s37 Gives court jurisdiction to allow order where it is 'just and reasonable to do so'
Re BCCI SA (no.9) -orders sought against a director of BCCI -liquidators were seeking to make him personally liable for debts on basis of fraudulent management - Rattee J established 3 conditions (in addition to American Cyanamid) that must be established before granting mareva injunction; 1) likely to obtain judgement for a certain or approximate sum (the good case test) 2) D has assets in the jurisdiction (assets test) 3) D may well (real risk) take steps to ensure assess are no longer available and traceable (the dissipation test)
world wide freezing orders court can grant these as they are liable in personam so they are not contrary to principle that a court shall not make an order which takes effect in a foreign jurisdiction
How are Injunctions enforced? Equity acts in personam, therefore if someone fails to comply with an order they are liable for contempt of court and may be liable to pay a fine and/or face imprisonment The Contempt of Court Act 1981 (max of 2 years)
Lord Cairns Act (Chancery Amendment Act 1858) Common law damages intended to compensate C for losses incurred as a result of D's interference injunction intended to prevent future interference According to LCA damages may be awarded in lieu of an injunction Different basis of award, not just concerned with losses incurred due to interference with right, but also concerned with losses of future opportunities to enforce the right
Shelfer v City of London Electric Lighting Co. (Shelfer) Set down guidelines for circumstances in which a court may award damages in lieu of an injunction a) Harm to C's rights must be comparatively small b) Harm must be capable of being quantified in monetary terms c) Harm suffered must be such that it can be compensated by payment of damages; and d) it must be oppressive to D to grant an injunction
Specific Performance Compels a person to perform a particular contractual obligation
what are the general principles of SP? 'Equity will not assist a volunteer -person claiming SP must be able to show they have given consideration -SP granted in cases where common law damages are not adequate remedy for breach of contract (Beswick v Beswick) -no need to show breach of contract
Beswick v Beswick SP: SP granted in cases where common law damages would not be an adequate remedy for breach of contract
Mandatory Injunctions Require D to do something Rarely Granted, even though refusal of I can cause significant damage (balance of costs involved)
what is the difference between a MI and SP? SP there must be a contract, in MI there does not need to be
Interim Mandatory Injunctions MI can be awarded at interim stage Courts very reluctant to grant these Shepherd Homes Ltd v Sandham 'the case has to be unusually strong and clear before a MI will be granted'
Shepherd Homes Ltd v Sandham (Shepherd Homes Ltd) in order to grant a MI, the case must be unusually strong and clear.
Graigola Merthyr Co Ltd v Swansea Corp 'A mere vague apprehension is not sufficient to support an action for a Quia Timet injunction. There must be an immediate threat to do something
Perpetual Injunction A permanent injunction that will endure for an indefinite period into the future
Interim Injunction Temporary injunction granted during course of litigation, usually pending full trial of an action
How can injunctions be granted? With notice (inter partes) both parties are represented at the hearing where the injunction is granted Without notice (ex parte) only party seeking injunction is represented at the hearing
What are the general principles governing the grant of injunctions? A) some right of applicant must be affected (Paton v British Pregnancy Advisory Service) B) Perpetual injunctions only when common law remedies inadequate C) Mandatory injunctions, may be refused where impose pos duty on D with need of supervision or where action would impose hardship on D (Redland Bricks v Morris) D) Delay in seeking equity and coming to equity with clean hands, key issues E) Injunction must not cause hardship to D, test of oppression, not balance of convenience (Regan v Paul Properties)
Prohibitory Injunctions Forbids ANTICIPATED or EXISTING conduct
Mandatory Injunctions Orders conduct or the undoing of something which interferes with the rights of another
Quia Timet Injunctions (because he fears). Restrains action which is feared in the future
Injunctions (Act) Senior Courts Act 1981 S37
Five Main forms of Injunctions 1)Mandatory 2)Prohibitory 3)Quia Timet 4)Perpetual 5)Interim
Equitable Maxims -'Equity will not suffer a wrong to be without a remedy' -'Equity acts in personam' -'Those that come to equity must come with clean hands' -'Delay defeats equity'
Different types of Equitable Remedies (5) 1) Injunctions 2) Rescission 3) Specific Performance 4) Account of Profits 5) Subrogation
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