7.2.3 Other Remedies Lecture – Hands on Example
The following section will provide you with a problem scenario which involves issues relating to the application of remedies other than damages. This will test your understanding and knowledge of what you have learnt and allow you put the law into practice. You should now understand each of the different remedies, be able to identify which is the appropriate remedy to apply, and the limitations to each of them. The problem scenario will cover a variety of issues, and the answers can be found at the bottom of the page.
In order to identify a problem question relating to other remedies, you should look out for a breach of contract for which damages would not be an appropriate remedy. A common example of this would be a contract for a service, or a contract with some kind of negative obligation.
Here is a suggestion approach when tackling a problem scenario on other remedies which should allow you to answer the question fully and spot all the relevant issues:
- Is the claim one in relation to debt? If so, apply the award of an agreed price.
- Is the contract for the provision of services? If so, consider the remedy of specific performance.
- Does the contract fulfil the requirements of a remedy of specific performance?
- Are there any bars to specific performance?
- Does the contract involve a negative covenant? If so, consider the mandatory injunction remedy.
- Does the contract involve a negative obligation? If so, consider a prohibitory injunction.
If you consider all of these remedies in turn, you can be sure you will not miss one of the potential remedies out. Once you identify the appropriate remedy, apply the requirements of the remedy and mention any relevant case law precedent. Have a go at using this structure with the problem scenario below.
Robert has been the victim of some extremely unfortunate events recently. He has been involved in a number of contracts where the other party has not kept their side of the bargain. Robert wants to know if there is anything he can do about these contracts.
Contract one – Robert recently got a new job working at a local veterinary clinic. It was Robert’s dream to work with animals so he was delighted to be offered the job. Roberts’s employment contract stated he would be given a minimum of 35 hours of work a week. After an argument with the manager, Robert’s hours have been reduced significantly, only being given two hours a week. Robert is not interested in a monetary award, but would like to continue working his 35 hours a week at the vets.
Is there a remedy which may help Robert in this situation?
Contract two – Robert is very proud of his garden and spent a significant amount of money developing it. Robert’s neighbour has a number of cats that often dig his garden up and therefore offered his neighbour £50 a week to ensure his cats stayed inside and did not ruin his garden. Robert’s neighbour was happy with this and has kept his side of the bargain however, the cats have started digging his garden up again.
Is there a potential remedy that could help Robert out in this situation?
Contract three – Robert sold his car to Jimmy and Jimmy is yet to pay him the £1000 agreed.
What is the most appropriate remedy in this case?
- As Robert is not interested in monetary compensation, and instead wants his employer to uphold his employment contract, the most appropriate remedy would be a claim for specific performance, which would force the employer to give Robert his 35 hours a week.
Generally, the requirement for a claim for specific performance to succeed is that it must be the most appropriate remedy (Beswick v Beswick). In Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd the most important consideration is the harm caused to the defendant. Applying that to this case, it does not seem that an order for specific performance would cause disproportionate harm to the employer.
Next, the bars to specific performance should be considered. There are two relevant bars here – firstly, the obligation may require constant supervision from the court. Each time the defendant breaches the order for specific performance, Robert would have to apply to the court to compel the defendant to perform. Whether this is an issue or not is dependent on the term of Roberts’s employment, if it is shorter, this bar to specific performance is unlikely to apply. The second bar that may apply is that the contractual obligation involves a personal service. If the specific performance would force unwilling parties into a personal relationship, the courts are unwilling to grant a specific performance remedy. In this case, this would depend on the size of the clinic and whether it would force the manager and Robert into a personal relationship. If the clinic is small it is unlikely a remedy for specific performance would be possible.
- The contract in question involves a negative obligation, as Robert’s neighbour must not let his cats on Robert’s property. The relevant remedy here would be a prohibitory injunction which would force Robert’s neighbour to stop breaching the negative obligation. The first requirement of a prohibitory injunction has been established – that the contract involves a negative obligation. The second requirement is that damages cannot be an adequate remedy.
Here, damages would not be an adequate remedy, because damages would not compensate Robert, he entered to contract to prevent his garden from being destroyed. Therefore, on the face of it, it seems a prohibitory injunction would be an appropriate and available remedy. The courts may attempt to refuse the granting of a prohibitory injunction if it would be disproportionately oppressive on the defendant, as per Jaggard v Sawyer. In this case, this would not be an issue, as there would be no adverse effect on the defendant other than complying with the contractual obligations.
- The most appropriate remedy in this case would be the award of an agreed price. The requirements are that there is a specific sum due under the contract, which is owed to the claimant. In this case, there is clearly a specified sum of £1,000 due under the contract. Whether or not the sum is due is dependent on the terms of the contract. If, for example, the contract stipulates that the monies are due in March 2017 and it is only January 2017, the specified sum would not be due and therefore the award of an agree price would fail.
Therefore, if the £1,000 is due under the contractual terms, Robert may claim for the award of an agreed price of £1,000.
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