Equitable remedies (specific performance, injunctions)

CON.13 Equitable remedies: specific performance & injunctions

Equitable remedies are discretionary, not available as of right (unlike damages). The court will refuse them on equitable grounds even where a right is made out.

Core gateway: damages must be inadequate

Both SP and prohibitory/mandatory injunctions are granted only where damages would be an inadequate remedy. Damages are usually adequate where the claimant can buy a substitute in the market. The classic illustration that damages can be inadequate is Beswick v Beswick — the estate could recover only nominal damages, so SP was ordered to make the defendant pay the promised annuity.

Specific performance (SP)

An order compelling a party to perform its contractual obligations.

• Land: SP is the typical remedy for sale of land/leases — every piece of land is treated as unique, so damages are inadequate (a general equitable principle; SP is awarded to buyer and seller given mutuality).
• Unique/scarce goods: SP available for genuinely unique chattels (e.g. a rare antique). Ordinary commercial goods → damages adequate, SP refused (Cohen v Roche — Hepplewhite chairs, ordinary commercial article, refused).
• Bars to SP — learn these:
  • Contracts for personal services (employment) — not specifically enforced; court won't compel an unwilling person to work or maintain a hostile relationship.
  • Constant supervision required — court won't order it (Co-operative Insurance v Argyll Stores — refusal to order a tenant to keep a shop open; House of Lords).
  • Mutuality / want of consideration — no SP for a volunteer; "equity will not assist a volunteer."
  • Hardship, mistake, misrepresentation, unfairness of conduct.

Injunctions

• Prohibitory — restrains breach of a negative obligation; granted relatively readily (almost as of right where a clear negative covenant is breached).
• Mandatory — compels positive action; granted more cautiously (Redland Bricks v Morris factors).
• Restraint-of-trade / negative covenants in personal-service contracts: an injunction may enforce a genuine negative promise even though SP of the positive service is barred — but not if it leaves the defendant with the practical choice of "work for the claimant or starve" (Warner Bros v Nelson enforced; cf. Page One Records, Lumley v Wagner).

Equitable defences / discretionary bars (apply to both)

• Laches — unreasonable delay.
• "He who comes to equity must come with clean hands."
• Hardship to the defendant, impossibility, or where the order would be futile.

Common SQE1 traps

• Equitable remedies are discretionary — never "entitled to."
• Damages adequacy is the threshold question, applied case-by-case (land/unique goods = inadequate).
• Don't confuse SP (positive performance, many bars) with a prohibitory injunction (negative obligation, granted readily).
• Personal-service contracts: no SP, but a negative covenant may be injuncted within limits.
• Equitable damages under the Senior Courts Act 1981 s.50 (formerly Lord Cairns' Act) may be awarded in lieu of or in addition to SP/injunction.