Equitable - Notes PDF

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Equitable remedies – are discretionary it’s up to the judge’s discretion Claimant can get equitable remedies if he or she hasn’t fulfilled their part of the contract. Undue hardship – Patel v Ali – defendant had broken leg was very ill and had children Equity won’t act in vain Come with clean hands Claimant may ask for specific performance where damages are not adequate. Both clients require specific performance.

Equitable Remedies 1. Cause of action – what is the breach? Explain where? Breach of contract – if so say which type of contract sales of goods etc Breach of copyright Breach of confidence

2. Final remedy Breach of contract – specific performance Court order compelling defendant to perform positive obligations under a contract

3. Type of contract Sales of goods Sales of Service

4. In order to know if specific performance is available to the defendant needs to go through the test 1. Are damages adequate? – ALWAYS USE THIS PART Adderley v Dixon

2. Are goods unique?  Falcke v Gray – beauty, rare and distinction  Pusey v Pusey – unique king Viking antique, king had been dead for 1,000 years  Sky Petroleum v VIP - Is there is a limited source of supply it is considered as unique.  Behnke v Bede – unique to the clamant himself, not unique to anyone else but the clamant

OR

2. Are the services irreplaceable? Verrall v Great Yarmouth The longer the SP the more unlikely the courts will grant it.

Reasons not to grant SP  Slavery - De Francesco v Barnum [1890]  N.B. s 236 TULRCA 1992  Services sufficiently defined  Ryan v Mutual Tontine Westminster Chambers / Posner v ScottLewis  Constant supervision – keep going back to court to re submit a  Co-operative Insurance v Argyll Stores  Deliberately poor performance/ not act in vain  Giles v Morris – No artistic contractual services as courts don’t know if its been done accurately. If relationship is completely broken down courts wont grant specific performance

5 Seek IMI Urgency – May need action to be taken before trial (e.g. if you want specific performance at trial but it’s too urgent to wait) - as shown Sky Petroleum. Shepherd Homes Ltd v Sandham (1970) ‘High degree of assurance that at trial it will appear the injunction was rightly granted’ If you just want an item to sell for profit damages are adequate.

1.

Interim remedy – Urgent court order

Interim Prohibitory Injunction (“IPI”) What – Order before the final injunction. restraining the defendant from selling product. Why – e.g to prevent defendant from dominating market/causing loss to company Urgency - Damage may be done before trial. Equity won’t act in vain (A.G. v Guardian Newspapers (No 2)

Requirements – established in American Cyanamid 1. Serious question to be tried (Mothercare v Robson Books) Not acting frivolous or vexatious (Morning Star v Express Newspapers) 2.Balance of convenience – If there’s no injunction and the clamant wins can the defendant pay the adequate damages and will the court be able to measure up the damages? If the injunction is given but the claimant loses the trial can the defendant get compensated adequate damages will the claimant be able to pay. Take note - if the company is in trouble, if the defendant is a person, if product copywritten would by the time the trial comes around would the product be out of date?

3.Special factors – is it going to affect people’s employment if the injunction is granted? Has the claimant done something dishonourably to the defendant? Has the defendant invested money into the claimant?

4. Status quo – put the parties back into place before last act complained of upon. Ways in favour of the claimant. if undecided but normally favours the defendant. Defendant could argue that the claimant has done something unfair such as the claimant has waited years to make the claim.

Search orders What Order requiring the defendant to allow clamant representatives into premises to search for and secure evidence of breach. Requirements is high due to human rights concerns. Why To support copyright/confidence claim in court. Urgency Concern that the defendant might hide/destroy evidence. Requirements Requirements (Anton Piller KG v Manufacturing processes)

1. Extremely strong prima facie case – good to use expert, history of the defendant. 2.

Risk of serious harm (actual or potential) – if the order isn’t granted.

3.

Clear evidence – suspicious, clearly hiding something.

4.

Risk evidence will be hidden/destroyed – look at the facts.

Fly- by – night video pirate Also, do IMI if you do search order just for back up so the court can order the defendant to give the copy.

Freezing Order works against the person and not the property. Make sure that the defendant would be able to pay as assets are frozen. What - Interim prohibitory injunction preventing the defendant dealing with his assets Why - To ensure the defendant has sufficient assets to pay if administrators win at trial Urgency - Concern the defendant will move assets Requirements (Derby v Weldon) 1.Good arguable case – refer to previous orders applied in your answer 2.Available assets 3.Real risk of dissipation -

1. Cause of action – Day v Brownrigg – Legal right Breach of copyright Breach of confidence Breach of Fiducry duty (Could mention this if there’s a constructive trust)

2. Final remedy 

Account of profits A personal remedy requiring defendant to give up (“disgorge”) profits Breach of fiduciary duty (but remember FHR v Cedar Capital) Unlikely for breach of contract – Normal remedy is common law damages (unless akin to breach of fiduciary duty) See Attorney General v Blake (2005) for a good example



Perpetual prohibitory injunction Prohibitory (permanent) Injunction: A court order restraining Defendant from undertaking an act.

3. Interim remedy – Urgent court order 

Interim Prohibitory Injunction (“IPI”) What – Order before the final injunction. restraining the defendant from selling product. Why – e.g to prevent defendant from dominating market/causing loss to company Urgency - Damage may be done before trial. Equity won’t act in vain (A.G. v Guardian Newspapers (No 2)

Requirements – established in American Cyanamid 1. Serious question to be tried (Mothercare v Robson Books) Not acting frivolous or vexatious (Morning Star v Express Newspapers) 2. Balance of convenience – If there’s no injunction and the clamant wins can the defendant pay the adequate damages and will the court be able to measure up the damages? If the injunction is given but the claimant loses the trial can the defendant get compensated adequate damages will the claimant be able to pay.

Take note - if the company is in trouble, if the defendant is a person, if product copywritten would by the time the trial comes around would the product be out of date?

3. Special factors – is it going to affect people’s employment if the injunction is granted? Has the claimant done something dishonourably to the defendant? Has the defendant invested money into the claimant? 4. Status quo – put the parties back into place before last act complained of upon. Ways in favour of the claimant. if undecided but normally favours the defendant. Defendant could argue that the claimant has done something unfair such as the claimant has waited years to make the claim.

search orders What Order requiring the defendant to allow clamant representatives into premises to search for and secure evidence of breach. Requirements is high due to human rights concerns. Why To support copyright/confidence claim in court. Urgency Concern that the defendant might hide/destroy evidence. Requirements Requirements (Anton Piller KG v Manufacturing processes) 1. Extremely strong prima facie case – good to use expert, history of the defendant. 2. Risk of serious harm (actual or potential) – if the order isn’t granted. 3. Clear evidence – suspicious, clearly hiding something. 4. Risk evidence will be hidden/destroyed – look at the facts. Fly- by – night video pirate Also, do IMI if you do search order just for back up so the court can order the defendant to give the copy

Freezing Order - works against the person and not the property. Make sure that the defendant would be able to pay as assets are frozen. What - Interim prohibitory injunction preventing the defendant dealing with his assets

Why - To ensure the defendant has sufficient assets to pay if administrators win at trial Urgency - Concern the defendant will move assets

Requirements (Derby v Weldon) Good arguable case – refer to previous orders applied in your answer Available assets Real risk of dissipation -...