Equitable remedies

Equitable remedies are granted on the discretion of court where common law damages are
inadequate. They seek the performance of the contract instead of compensating the claimant.

Types of remedies

1. Specific Performance.

Specific performance is where the party in breach is forced to complete their part of the contract.
This is where a party promises do to something but breaches the contract by not completing the
stipulated act.

The remedy of specific performance is granted when damages are inadequate, and they are an
exceptional remedy which means that it will not be granted usually.

This can be seen in the case of Co-operative Insurance Society Ltd v Argyll Stores- where the house
of lords stated that specific performance will remain an exceptional remedy.

Where there is a breach of contract of selling land, the adequate remedy is seen to the specific
performance and damages are an inadequate remedy.

Johnson v Agnew- where the defendant contract with the claimant to buy his house but failed to
complete it. The claimant was granted specific performance.

Conditions

i) Specific performance remedy will not be granted where common law damages are an
adequate remedy.
Behnke v Bede- where a ship was sold but was of unique value to the claimant, a remedy
of specific performance was granted.
Societe des Industries SA v The Bronx Engineering- where an order of specific
performance was rejected because damages were seen to be an adequate remedy for a
contract to build a complicated machinery that took 12 months to complete. Damages
would allow the party to purchase the goods required to fix the machine,

ii) Specific performance will not be granted where a constant supervision of the court is
required.
Zinc Cobham v Adda Hotels [2018]- where specific performance was refused the basis
that it would require constant supervision of the court.
Co-operative Insurance Society Ltd v Argyll Stores (the Argyll)- where an agreement to
keep a shop open, it was held that the clause in the agreement was not specific enough
to be capable of specific performance.
Ryan v Mutual Tontine- where a hall porter failed to do his duty under the contract to
take care of common areas, an order of specific performance was rejected as the courts
would have to constantly supervise the porter.

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iii) Specific performance will not be granted where the claimants’ actions are unequitable
this is according to the equitable maxim “he who comes to equity must come with
clean hands”.
Webster v Cecil- where the claimant tried to get specific performance for a contract to
sell land when he knew the amount in the contract stated by the defendant was
incorrect. Specific performance was not granted.

iv) Specific performance will not be granted where the claimant has not performed the
contract in the prescribed manner or have obtain the contract is an unfair manner.
Walters v Morgan- where specific performance was not granted for a lease of a mining,
because the claimant had rushed the defendant into signing the lease without disclosing
the value of the land.

v) Won’t be granted where specific performance will put hardship on the defendant. For
example, where the cost incurred by the defendant due to specific performance would
be greater than the benefit that would occur to the claimant.
Patel v Ali- where a house was owned by 2 defendants and contracted to sell the house
to the claimant. The first defendant declared himself as bankrupt and his trustee’s sough
to stop the sale of the house. The second defendant was very sick and depended upon
their relatives. An order of specific performance on the first defendant could not be
made as they had left the country and the court rejected to grant an order for specific
performance on the second defendant on the basis that it would cause sever hardship
on them due to their illness.

vi) Specific performance will not be granted where the defendant will be unable to
perform the contract.
Watts v Spence-

vii) Specific performance won’t be granted where there isn’t mutuality for remedy. Which is
if specific performance is available for one party it should be available for the other
party as well.
Page One Records v Britton (1968)- where an order for specific performance upon a
manager was rejected because the manager to perform his contract of employment.
Because the manager cannot get an order for specific performance against the claimant
to keep him as their manager.
Flight v Bolland- where a minor wasn’t able to get an order for specific performance
because the other party couldn’t have gotten an order against the minor.

viii) Specific performance will not be granted for certain types of contracts e.g., that of
personal service/ employment.
Page One Records v Britton (1968).

ix) Specific performance will not be granted where there has been a significant lapse of
time in getting specific performance.

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Damages in lieu of Specific Performance and injunction

Under section 50 of the Senior Courts Act 1981 courts have the discretion to award damages in
addition to or instead of specific performance or injunction. Damages in lieu of specific will not be
granted where specific performance will not be granted due to any limitations.

A claim for both damages and specific performance can be combined.

Wroth v Tyler (1974)- it was held that where damages are granted instead of specific performance,
the amount of damages should be provided must reflect specific performance or “must constitute to
true a substitute to specific performance”.

Injunction

An order of injunction is to refrain a party from doing a specific act. This is where the party promises
not to do something but breaches the contract by doing the prohibited act.

Injunctions are also granted on the discretion of court but are likely to be granted more often than
specific performance.

Limitations

i) Won’t be granted where they would cause hardship on the defendant.

ii) Won’t be granted where an injunction would indirectly amount to an order of specific
performance.
Page One Records v Britton (1968)- an order for injunction was rejected because it
would compel the defendant to employ the claimant, and this would amount to
performance of a contract.
Where a contract compels a party to not work elsewhere an injunction will not be
granted.
Warner bros v Nelson- An order for injunction was rejected where a clause in the
contract required the defendant to not work for any other company.