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GDL Law Notes GDL Equity and Trusts Notes

Remedies Notes

Updated Remedies Notes

GDL Equity and Trusts Notes

GDL Equity and Trusts

Approximately 631 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through many applications from mostly first class students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. You'll notice that we include several different authors' worth of notes. The first is our 2017 author...

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Identify main case

- C. must show breach of recognisable right / tort (Day v Brownrigg).

  • breach of contract SP, IMI, IPI.

  • breach of copyright/confidence SO, IPI, Account.

  • unpaid debt/damages FO.

  • Specific Performance

    - Definition: court order to carry out positive obligation under contract (final remedy only).

    - Test: damages not adequate (Adderley v Dixon).

    • land: contracts to buy/sell or grant estate/interest SP.

    • personalty: if unique/rare.

      • NOT ordinary articles of commerce (Cohen v Roche: Hepplewhite chairs).

      • shares if not available on market (Duncuft v Albrecht; Oughtred v IRC + Nevile v Wilson: private cos.)

      • articles of unusual beauty, rarity + distinction (Falcke v Gray: Ming vase; Philips v Lamdin: ornate door; Pusey v Pusey: King Cnut’s battle horn).

      • articles of unique value to c. (Behnke v Bede: ship conforming to special German regulations).

      • limited source of supply (Sky Petroleum v VIP: petrol + diesel during OPEC oil crisis).

    • contracts for service: if losses from non-performance not quantifiable – requirements:

      • 1. irreplaceable.

        • Verrall v Great Yarmouth BC: party conference cancelled at last minute no alternative.

        • Evans v BBC: party broadcast cancelled political loss not quantifiable.

      • 2. sufficiently clearly defined workable court order.

        • Ryan v Mutual Tontine Assoc: provide porter ‘constantly in attendance’ no SP (+ supervision).

        • Posner v Scott-Lewis: employ porter for specific duties SP: specific court order + supervision.

      • 3. no ongoing supervision required (Co-Op Insurance v Argyll Stores: cov. to keep shop open no SP).

      • contracts for personal service:

        • employees: NO SP (s236 TULR(C)A 1992).

        • contractors: SP rare – policy reasons + equitable principles.

          • 1. not if constant supervision required.

          • 2. not if SP akin to slavery (De Francesco v Barnum: dancing girls).

            • factors: duration, relationship, control, proximity (Giles & Co v Morris).

          • 3. not if defeated by poor performance: equity will not act in vain (Giles & Co v Morris).

            • artistic/judgment SP unlikely; technical SP more likely (can supervise).

    - Defences:

    • 1. clean hands: inc. intent to carry out obs. (Coatsworth v Johnson: d. in breach of cov. to cultivate farm well).

    • 2. unreasonable delay/laches: dep. on facts (Eads v WIlliams)

    • 3. mistake (Tamplin v James).

    • 4. hardship: to d. or 3rd party (Patel v Ali: vendor of house cancer, leg amputated, 2 kids, no English no SP).

    Injunctions

    - Definition: court order requiring d. to do or refrain from doing particular act.

    • jurisdiction: High Court – s37(1) SCA 1981; County Court – s38 CCA 1984 (as amended).

    - Perpetual/final injunctions: final remedy.

    • prohibitive: prevent breach of obligation (Venables v News Group).

    • mandatory: require performance (like SP) or ‘restorative’ : to undo wrong (Jones v Stones).

    Interim Prohibitory Injunction (IPI)

    - 3-stage test (American Cyanamid v Ethicon Ltd, [Ld Diplock]).

    • 1. serious question: c’s case not frivolous/vexatious (Morning Star v Express Newspapers: similar names).

      • low threshold – some prospect of success needed (Mothercase v Robson Books).

    • 2. balance of convenience: trying to balance risk of injustice to either party.

      • a. adequacy of damages: would money compensate?

        • FOR C: if IPI refused + c. won trial: would damages compensate c. for pre-trial losses (+ could d. pay)? injunction usually refused.

        • FOR D: if IPI granted + d. won trial: would damages compensate d. for pre-trial losses (+ c. could pay)? injunction likely to be granted – but c. unable not determinative (Allen v Jambo Holdings)

      • b. other + special factors – inc:

        • loss of employment (Fellows & Son v Fisher)

        • loss of goodwill (Associated Newspapers v Insert Media)

        • closing of business – (Potters-Ballotini v Weston-Baker)

        • preserving substantial investment (Catnic Components Ltd v Stressline Ltd).

    • 3. preservation of status quo ante (i.e. before last change): decisive if balance of convenience even.

      • not fixed: status quo simply point in time – can change according to actions of parties.

      • usually favours injunction (Garden Cottage Foods v Milk Marketing Board)

      • but delay: favours letting wrong continue (Shepherd Homes Ltd v Sandham).

    • (4. merits of case: considered as last resort – only if balance of convenience even + 1 party’s case v. strong).

    - Exceptional cases: American Cynamid not followed.

    • 1. trial of action unlikely: injunction effectively settles matter in 1 party’s favour injunction only if c’s case overwhelming on merits (Cambridge Nutrition v BBC).

    • 2. defamation: if not obvious lie + d. raises justification def. no injunction (Greene v Associated Newspapers).

    • 3. freedom of expression: no restriction pre-trial unless court satisfied c. likely to establish publication should not be allowed (s12(3) HRA 1998; Cream Holdings v Banerjee; Douglas v Hello!)

    • 4. industrial disputes: governed by s221(2) TUALRA 1992.

    • 5. claims against public authorities exercising statutory powers/duties: c. needs extremely strong case on merits (Smith v ILEA).

    • 6. certain plain + uncontested breaches (Hubbard v Pitt).

    • 7. freezing injunctions + interim mandatory injunctions: see below.

    • 8. certain intellectual property cases.

    - N.B.: if amounts to SP (e.g. ‘not to work with anyone but X’ cf. SP to) no IPI if SP would fail (Page One Records v Britton).

    Interim Mandatory Injunction (IMI): often used as pre-trial alternative to SP (holding remedy).

    - Test: court feels high degree of assurance’ that IMI shown to be right (Shepherd Homes v Sandham, [Megarry J]; approved in Locabail Intl. Finance v Agroexport).

    • factors: damages trivial? proportion between d’s + c’s damage?

    • if SP likely at full trial, IMI (if ordering same thing) likely at interim stage (Page One Records v Britton).

    • Evans v BBC: IMI to compel d. to screen party political broadcast damages not adequate remedy for pol. loss.

    Search Order (Anton Pillar Order)

    - Definition: order compelling d. to allow c. access to premises for search + seizure of ev. supporting c’s case....

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