Equitable Remedies Introduction

Transcription

1 Equitable Remedies Introduction As discussed in the article on Equity and Trusts, the Court of Chancery developed its own set of remedies which were different from those used in the Kings common law courts. Essential differences are: They are generally directed towards people ordering them to do or not do something, where as the common law remedies are mostly limited to financial compensation / damages They are not normally awarded if damages would be sufficient People claiming an equitable remedy must have 'clean hands'

2 Injunction This is a general name for a number of different remedies. Basically an injunction is an order requiring someone to do or not to do a particular act. It will usually be backed up by a 'penal notice' which states that if the person named on the order fails to comply with it, they can be committed to prison.

3 Perpetual injunction These will not necessarily last forever, but they are final in that they will finally resolve the issue between the parties in the case. ( ) They can be either: Prohibitory - i.e. restraining the doing of an act, or Mandatory - i.e. commanding the doing of an act

4 Interlocutory injuctions These are made to preserve the status quo until an action comes to trial. They can be Prohibitory Mandatory, or Quia timet - Quia timet injunctions are made to restrain a threatened injury to the claimants rights even though it has not happened yet. For example where a trade union threatened to picket a hotel to prevent the delivery of fuel which would stop them carrying out their legal obligations. ( )

5 Freezing order This is known as a 'mareva injunction'. It is an order to prevent a defendant from disposing of assets which would otherwise be available to the claimant or removing them from the courts jurisdiction. There are strict rules though you need to comply with before it will be granted. (pic)

6 Search order These are known as 'anton piller' orders. They are used where a defendant might destroy evidence once a claim form is served on him. For example in cases of alleged video pirating. Again there are strict rules you must comply with and you need to have a strong case. (Pic)

7 Specific performance This is an order requiring someone to do something. These are less common as most injunctions are ordering someone NOT to do something. The rules were set out in the case of Co-Operative Insurance Soc v. Argyll Stores (Holdings) Ltd [1998] where specific performances was sought to keep open an important 'anchor' supermarket in a shopping centre. The House of Lords refused this, one reason being that it would be very difficult to supervise.

8 Rescission This is where the parties are restored to the position they were in before the contract or other transaction was made. (The picture shows St Benedict restoring life to a young monk)

9 Rectification This is where a written contract or agreement does not accord with the actual intentions of the parties. A Judge can order it to do so by an order of rectification. So in Craddock Bros. v Hunt [1923] a conveyance of a house included the adjacent yard which actually belonged to another house. The court ordered that the conveyance be rectified to exclude the yard. (Pic)

10 Account of profits This is a type of claim normally used in claims for breach of a fiduciary duty. It is an action taken to recover profits taken as a result of the breach of duty in order to prevent unjust enrichment. It is generally a complex claim as the defendants accounts will normally need to be examined by a forensic accountant. Note that historically this was a common law remedy, but is included here as it deals with equitable principles. A (comparitively) recent case is Boardman v. Phipps [1966].