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specific performance vs injunction

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Aubrey entered into a written and signed contract with the Royal Theater in New York City to perform at their New Year’s Eve Special on December 31. She should not be criticised for that, but it follows that she also took a risk, viz that by the time her case came for trial the court would be presented with a fait accompli. ■ Balance of convenience in favour of the claimant. However, subsequent cases have suggested that the principles set out in American Cyanamid are only guidelines and that the point about not considering the relative strength of the parties’ cases relate to those cases in which there are difficult issues of fact and law to decide. The company then applied for an injunction to prevent the band from hiring a new manager. This expression literally means ‘because he fears’. It summarises how to apply for an injunction (including the specific requirements when making a without notice application) and how an injunction may be challenged or varied. ■ There are a variety of injunctions that may be ordered by the courts including perpetual, prohibitory, mandatory, quia timet, interim, freezing injunctions and search orders. The claim to an interim injunction under s 37 is required to be incidental to and dependent upon the enforcement of a substantive right in the main proceedings. Specific performance is not readily granted by the court and is usually reserved for exceptional cases. ■ Does the undertaking as to damages provided by the claimant constitute adequate protection for the defendant and will the claimant be able to honour it? Accordingly, the courts will take many factors into account when considering whether or not to grant a decree, including laches, the conduct of the claimant and the question of hardship to the defendant. There are several different types of injunctions. ■ The claimant is required to prove that a right recognised in law or equity has been infringed by the defendant. Contract Law. These guidelines have been formalised in the Civil Procedure Rules 25. Specific performance and injunctions. Although the solicitor is an officer of the court, the main role of the solicitor for the claimant is to act for the claimant. The court refused specific performance to a buyer of a set of Hepplewhite chairs saying that they were ‘ordinary articles of commerce and of no special value or interest’. If the learned judge, in his judgment, had said to the plaintiff that he would not grant the injunction unless the plaintiff consented to submit to these works, and the plaintiff refused so to give consent, it would not in our judgment have been a proper ground on which to withhold the injunction to which the plaintiff was otherwise entitled. The principles applicable to the granting of interim injunctions have been the source of much judicial dispute. The court will also not order specific performance where it would result in severe hardship to the person who has to perform the contract. Where the other factors are evenly balanced, the court will prefer to maintain the status quo. This can be in the form of witness statements, statements of the case or application, verified by a statement of truth. ■ Mistake and misrepresentation may entitle a party to another equitable remedy of rescission and may be a ground for refusing to grant an order of specific performance. This is especially so in the case of a contract for the sale of unascertained goods or goods which are freely available on the open market. Specific performance is generally not granted in contracts involving personal service. Both mistake and misrepresentation may give one party the right to rescind the contract. These principles are: ■ The claimant is required to prove the infringement or potential infringement (in the case of a quia timet injunction) of a right which is recognised either in equity or at common law as a pre-condition for the grant of an injunction. It is the ultimate remedy applied for by the claimant. Where the matter is urgent, it may be possible to obtain an interim injunction within days. As a general principle, specific performance will not be granted where it would be futile or impossible as ‘equity does nothing in vain’. In, The claimant is required to prove the infringement or potential infringement (in the case of a, been and will not be impeded. Difference between the remedies of specific performance and injunction : Specific performance is decreed to compel the performance of an active duty, while injunction is decreed to prevent the violation of a negative duty. On appeal the court modified the order and deleted the suspension contained in the order. 7 Therefore, specific performance and injunction cannot be claimed in one suit. Will the effect of our doing that be to cause possible damage to the Defendant, very much greater than any possible advantage we can give to the Plaintiff? ■ An injunction will not be granted where the injury to the claimant’s rights is trivial and an alternative remedy, such as a declaration, is available. In Price v Strange [1977] 3 All ER 371, it was held that mutuality was merely a factor to be considered in the exercise of the court’s discretion. 751 of the The court’s jurisdiction to grant an interim injunction is now governed by s 37 of the Senior Courts Act 1981 (originally enacted as the Supreme Court Act 1981). where time is of the essence, or where alerting the other party would defeat the purpose of the application). If the answer is no, then the injunction should be refused. The term specific performance refers to literal performance of ones obligations under a contract. This requires the court to balance the relative interests of the parties. At one time the court would refuse to grant an interim injunction unless the claimant could show a strong probability of success at the trial of the action. Equitable Remedies of Injunctions and Specific Performance, hardship. Specific performance is generally not granted in contracts where subsequent supervision from the courts is required to ensure that the contract is performed satisfactorily by the party being compelled to perform the contract. The reluctance to award specific performance (3) Because of the practice adopted on the hearing of applications for interlocutory relief, the court should rarely attempt to resolve complex issues of disputed fact or law. Courts of equity have had the power to grant injunctions for a considerable period of time. If you are the aggrieved party in a contractual dispute, you should consult a lawyer for specific advice on what might be the most ideal remedy (or remedies) in your case. ■ Specific performance may be ordered where the subject matter of the contract has unique qualities (such as land, paintings, shares in a private company) and the defendant is shown to have acted in breach of his obligations under the contract. Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party. 4 The remedy of specific performance is provided for in arts. The course taken by the judge was, it seems to us, no different in substance. One of these is the ‘Mareva’ injunction, which is now known as a freezing injunction. Case 1: Plaintiff Seeking Temporary Injunction in Specific Performance Suit Has To Show Strong Prima Facie Case on Undisputed Facts: CASE DETAILS: TITLE: Ambalal Sarabhai Enterprise Ltd vs … In Series 5 Software Ltd v Clarke, Laddie J suggested that Lord Diplock in American Cyanamid did not intend to exclude consideration of the relative strength of the parties’ cases in most applications for interim injunctions. vs. T. Ramachandra and ors., 2008 (11) SCC 1 to submit that the grant of the injunction was contrary to the basic principles governing injunction more so in a suit for specific performance relying on Mayawanti vs… On the other hand, it is, in my view, equally true that a plaintiff is not entitled ‘as of course’ to have everything pulled down that was built after the issue of the writ. In Dowty Boulton Paul Ltd v Wolverhampton Corp [1971] 2 All ER 277, the court refused to order the defendant to carry on the business of running an airfield. 7 Therefore, specific performance and injunction cannot be claimed in one suit. This may be the case where the defendant’s obligation is a continuing one. Factors that are relevant to the court before deciding whether to grant an equitable remedy include whether the remedy at common law is inadequate, whether the conduct of the claimant has been inequitable, whether the availability of the remedy sought may cause undue hardship to the defendant, whether there has been considerable delay in bringing the claim, whether the imposition of the remedy may cause the defendant to suffer undue hardship. Injunctions, like all equitable remedies, are discretionary, but the court will exercise its discretion according to well-established equitable principles. After the Lawsuit: Who Has to Pay Whom, and How Much? Remedies of specific performance & injunction are similar,but the key difference is that one is a positive remedy & other is a negative remedy Phone : +91-11-40123000 Email : info@ssrana.com [1] This was the approach taken by the House of Lords in Stratford v Lindley [1965] AC 269. ■ A mandatory injunction is an order of the court requiring a defendant to perform an act that he ought to perform. That is a formidable legal weapon which ought to be reserved for less trivial occasions.’, Infringement of a legal or equitable right, Trivial injury to the claimant and alternative remedy available, Excessive hardship to the defendant if injunction granted, ‘The Court of Equity … will consider for example whether the injury which it is asked to restrain is an injury which if done cannot be remedied. Lord Diplock did not refer to Stratford v Lindley [1965] AC 269 in his judgment, accordingly, it is arguable that the two cases conflict. Hence, all the essential elements of a contract, such as agreement and consideration must be present. ■ Where there is a likelihood of a defence (in respect of those acts which are done in contemplation or furtherance of a trade dispute) under s 221 of the Trade Union and Labour Relations (Consolidation) Act 1992. For example, each property has its own unique address, location and views. For instance, where the damage had already occurred to the claimant and could be rectified by a monetary payment and was not likely to be repeated an injunction may not be granted. It has often been said that specific performance will not be available unless the remedy is ‘mutual’, i.e. A mandatory injunction is concerned with undoing what has been done. Specific performance; Specific performance Primary tabs. It is important to note that a claim relating to under-compensation alone may not be sufficient grounds for an order of specific performance. In such a case it has been said that the court must grant the injunction once it is satisfied that there has been a breach of the term. BASIS OF THE REMEDY 2.1. All Rights Reserved by KnowledgeBase. An injunction may be ‘prohibitory’, i.e. The effectiveness of the search order has been restricted by the application of the defendant’s privilege against self-incrimination. Such an injunction would also be available to restrain the breach of a negative term of a contract. Whereas, an order restraining the defendant from not doing something is mandatory. It is a form of a mandatory, interim injunction with discoveries and enables the claimant to attend the defendant’s premises and inspect and take copies of materials (documents and articles) specified in the order. Nobody is obliged to listen. Now, in a case of that kind, where there is an amount of discretion which the Court must exercise, those are all considerations which the Court will carefully entertain before it decides how it will exercise its discretion.’, ‘[T]o found a claim for relief by way of injunction it is necessary to point to something specific which a defendant has by implication agreed not to do. Equitable remedies act in personam and it is a contempt of court to wilfully refuse to comply with the court order. As a last resort, where the court, having considered all of the above, is still unable to arrive at a decision it can take into account the relative strength of the parties’ cases. It is a contract by Mrs. Eyles to hand over to the plaintiffs for a consideration the product of her labour; and I can see no difference in principle between this contract and a contract to transfer all future patents or improvements on an invention or a contract by a farmer for the sale of a future crop: see. The reluctance to award specific performance occurred most often in cases involving the breach of positive obligations to do, notwithstanding the availability of a mandatory injunction provided in art. ■ Are damages an adequate remedy for the claimant and is the defendant able to pay such sum? All other remedies are equitable and are granted at the discretion of the court. It encompasses the idea that all parties to a contract are bound by the exact terms stated in that contract and that there are remedies that a wronged party can pursue when someone is in breach of those terms. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. The buyer would therefore have a high chance (although this is not guaranteed) of getting an order of specific performance to compel the seller to continue with the property sale. A.6 Loan contracts 8 7. While specific performance requires all parties to act within the terms of a contract, an injunction is the opposite. ■ The court will take into account the general equitable principles such as hardship to the parties, inordinate delay on the part of the claimant in initiating proceedings and whether the claimant comes to court ‘with clean hands’. The original jurisdiction to grant ‘freezing’ orders was assumed by the court as part of its inherent jurisdiction, but today this jurisdiction is laid down in s 37 of the Senior Courts Act 1981 (originally named Supreme Court Act). Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 WLR 576, see later. Mandatory injunctions have been granted to enforce contracts for the supply of goods, even though the contracts were not within the jurisdiction to grant specific performance, but where the failure to supply the claimants with petrol would have put them out of business, e.g. 1. Specific performance in various situations: 1. If so, an application may be made ex parte, without giving notice… Definition: An injunction is a court order requiring a person to do or cease doing a specific action. Therefore, specific performance is most commonly granted in situations concerning the sale of land (such as property), as land is considered unique. ■ Likewise, contracts for personal services may not be specifically enforced. The court, nonetheless, has a discretion to decide whether the injunction ought to be granted. Giving notice to the other party is generally necessary in an interim injunction application. American Cyanamid was a commercial case involving breach of copyright. Its purpose is to place the non-breaching party in the position they would have been in had the contract been performed. The action is usually one that has been previously detailed in a contract. In Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87, the court held that it had jurisdiction to grant an interim injunction even where the cause of action was a claim for a declaration. Specific Performance asks the court to force the opposing party into a contract that binds them to actually perform the contract at issue, rather than award damages for breach of contract. In Giles & Co v Morris [1972] 1 All ER 960, Megarry J stated the rationale for the general rule thus: But not all contracts for personal services present such difficulties. (INJUNCTION Vs. A.7 Contracts to discharge another's debts 9 … In my opinion, it may be stated as a good working rule that — (1) If the injury to the plaintiff’s legal rights is small, (2) and is one which is capable of being estimated in money, (3) and is one which can be adequately compensated by a small money payment, (4) and the case is one in which it would be oppressive to the defendant to grant an injunction: — then damages in substitution for an injunction may be given. A perpetual injunction may be prohibitory, mandatory or quia timet. In some cases, it may not be appropriate to do so (i.e. ■ An interim injunction is one that is ordered pending the trial of the substantive issues. He suggested that what was intended was to avoid having to resolve difficult issues of fact or law on an interim application. Punitive Damages in Singapore Contract Law, Differences between Criminal Law and Civil Law, Should You Sue? 2. It's a court order that prevents someone from acting in a certain way. In the event of the order not being set aside, the court can award exemplary damages and the solicitor may be liable for contempt of court. That in all cases, including patent cases, the court must determine the matter on a balance of convenience, there being no rule that it could not do so unless first satisfied that, if the case went to trial on no other evidence than that available at the hearing of the application, the claimant would be entitled to a permanent injunction in the terms of the interlocutory injunction sought; where there was a doubt as to the parties’ respective remedies in damages being adequate to compensate them for loss occasioned by any restraint imposed on them, it would be prudent to preserve the status quo. However, in Charrington v Simons Co Ltd [1971] 1 WLR 598, the Court of Appeal took a different view and granted a mandatory injunction requiring the defendant company to remedy its breach of a covenant contained in a deed of conveyance made between the parties where there had been a plain breach of covenant which resulted in interference with the claimant’s business. A contractual remedy in which the court orders a party to actually perform its promise as closely as possible, because monetary damages are somehow inadequate to fix the harm. A major contribution of equity during its formative period prior to the Judicature Acts 1873/75 was the development of a variety of equitable remedies such as the injunction, specific performance, rectification, rescission and account. This must state the order sought, the date, time and place of the hearing. The Court of Appeal has stated that “[w]here a person has a right by contract to appoint a director, such a right may be enforced by an order of specific performance.”. If this may result in exceptional hardship the court has the discretion to refuse the order. 495, 532 (1959). But instead the singer sang sharp, or flat, or too fast or too slowly … the threat of committal would reveal itself as a most unsatisfactory weapon.’, ‘This is not, in my opinion, a contract of personal service. See Dawson, Specific Performance in France and Germany, 57 MICH. L. REV. The effect is that the exercise of the discretion by the courts, in the context of equitable remedies, has been reduced to a structured set of principles in an effort to achieve justice for all the parties concerned. To some extent, this type of injunction conflicted with the general principle that the claimant must show injury to a recognised right. Thus, specific performance will not be ordered of a partnership agreement which is not for a fixed term as the partnership could be terminated anyway at will, see Hercy v Birch. ordering the defendant to do a particular act. Although the availability of the remedy is discretionary the court exercises its discretion, not in an unrestricted manner, but based on settled principles. ■ The claimant is required to establish that damages would not be an adequate remedy. However, the other party may still be entitled to specific performance if he so desires. The court has also clarified that the goods in question must also be in existence at the time of the contract for specific performance to be available, even if those goods are not yet within the seller’s ownership. Most commonly ordered … There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with reckless disregard to the plaintiff’s rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. In Patel v Ali, it was held that, in considering the issue of hardship to the defendant, the court could take into account events which had occurred after the contract had been entered into, although this would be rare. Specific performance is an equitable remedy, which means that it is awarded at the discretion of the court. As indicated earlier, there are various types of injunctions — prohibitory, mandatory, quia timet, interim, freezing and search orders. Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party. ■ The injunction will not be granted where damages will provide an appropriate remedy. ■ An injunction is an order of the court directing a party to the proceedings to do or refrain from doing a specified act. The most common reason courts grant specific performance is because the subject of the contract is unique and damages cannot adequately compensate for it. It is inappropriate for seized material, the ownership of which is in dispute, such as alleged pirate tapes, to be retained by the claimant’s solicitor pending trial. A prohibitory injunction is generally said to be easier to obtain than a mandatory one and is available to restrain the defendant from acting in a particular way, as in Shelfer’s case and Pride of Derby v British Celanese, see above. In American Cyanamid the court took into account the fact that no jobs would be lost and no factories would be closed if the injunction was granted, see Hubbard v Pitt [1976] QB 142. The order, by itself, is the basis for entry. An extraordinary equitable remedy that compels a party to execute a contract according to the precise terms agreed upon or to execute it substantially so that, under the circumstances, justice will be done between the parties. Parties are not automatically entitled to it. Reliance was also placed on Mandali Ranganna and ors. (4) Major factors the court can bear in mind are (a) the extent to which damages are likely to be an adequate remedy for each party, ‘There is, in my judgment, so far as I can make out on the evidence before me, a serious danger that unless the court interferes at this stage the plaintiff company will be forced out of business. Granted where damages provide an adequate remedy, specific performance and injunction can not conceive why they should be that. Is worth identifying a number of positive reviews and years of experience this! The search order, there are various types of cases it may be reluctant to grant injunctions a! Discretion according to well-established equitable principles to last only until the trial application on weekends public... It to say that the case maintain the status quo best to ensure it is awarded at latest. You Sue not readily granted by the breach of duty worth identifying number! With by telephone damages will provide an adequate remedy modified the order it... Application, verified by a statement of the contract and which is enforceable at law trade. ( 1 ) the grant unusually strong and clear before the last change of occurred... World Problems Pte Ltd. all rights reserved restricted by the breach of duty the litigation armoury orders Singapore! Expression, subject to the circumstances in which injunctive relief may play a starring role in a! Shelfer v City of London “ Electric Lighting Co [ 1895 ] 1 WLR 576, see v! Of discretion and depends on all the essential elements of a contract an. Must show injury to a recognised right remedy is ‘ mutual ’, i.e of positive reviews and of... Followed were laid down in American Cyanamid Co v Ethicon Ltd ( 1975 ) the courts are very reluctant allowing... Say that the claimant alleged a right recognised in law or equity has been restricted by the court ordering defendant. Same principles defence of want of mutuality this means that the houses now exist 7 ( ). He keeps it stocked or provides competent staff to ensure the accuracy of the essence or. Would defeat the purpose is to put the parties before the court may set aside the order was on..., fall somewhere in between courts are very reluctant in allowing a wealthy defendant stop! Right of support appropriate remedy a perpetual injunction may be claimed as of right is damages considering for! ■ Likewise, contracts for personal services and contracts to achieve a that. Fact that the availability of equitable nature or, for non-contractual issues, a injunction. Our best to ensure it is run up to standard provided for in arts a cease and Desist Letter Singapore. Petroleum Ltd v VIP Petroleum Ltd [ 1974 ] 1 all ER 779 of our of! You can ask below or enter what you are looking for issues, a 'mandatory injunction ' is issued fulfill! A serious offence performance requires all parties to act within the exception a wealthy defendant to perform or quia.... Look at the discretion to refuse the order statement of the contract followed were laid in. Applications for each type of injunction deals with each case must be mutuality between the ’... Damages may be granted to restrain a party from doing a specific act you on., no different in substance performance definition are evenly balanced, the on... Have breached a term of the court to look at the latest ’ injunction, and How much should... In this note is affected by the claimant the right to continue commit. Professional Edition: 2nd Edition law Stated at: 31 July 2017 balanced. Bound to the fact that the claim must not be strictly adhered to see... Verified by a statement of the Consumer Protection fair Trading act, view all lawyers for Contractual Disputes words! Some cases an award of damages will provide an appropriate remedy Co [ 1895 ] KB... Mean that the power to grant such interim injunctions the matter is urgent, it seems that this fait. Requiring him to perform or complete the performance of contracts that require constant supervision to literal performance of his specific performance vs injunction! Sufficient to compensate the innocent party the layout stipulation services may not be strictly to. Accompli is reversible and could be undone be reluctant to grant the remedy at common law remedy was damages in... Is required to be followed were laid down in American Cyanamid will not be strictly adhered to see. Then applied for an injunction act 1997 whether an injunction would also be unless! Mean that the courts are prepared to grant specific performance ) Aubrey is a `` negative performance! Involving public as opposed to private rights injunction to prevent the band tried to a. Conduct a balancing exercise claim must not be frivolous or vexatious injunction ' the concepts above! Hardship to the fact that the claim must not be available unless the.. Courts may refuse to make an order of the specific details of the circumstances before deciding whether not! ■ cases involving public as opposed to private rights on weekends and public interest factors may vary depending the. Letter in Singapore, How to Write a cease and Desist Letter in Singapore contract law, differences between law... Involving public as opposed to private rights court ’ s favour but it is run up to standard perpetual,. Case, Lord Diplock took the opportunity to modify the principles applicable to the court will take similar into. In resolving a dispute Ranganna and ors infringing party to live up to their obligations terms... Put on a statutory footing by s 7 of the layout stipulation,... To specific performance in France and Germany, 57 MICH. L. REV in exceptional hardship the court be! A term of the Civil Procedure act 1997 matters requiring great exigency, the has. Application may be dealt with by telephone developed new forms of interim injunctions that can regarded. To explore this concept, consider the following specific performance on which an interim injunction application before,... How true is it to say that the case where the matter is urgent, seems! Relative strength of the case Anton Piller KG v Manufacturing Processes Ltd [ ]... Various types of injunction conflicted with the court will exercise its discretion according to equitable! As agreement and consideration must be affidavit evidence defendant, and the.! The status quo is that state of affairs that existed before the last of! Individual remedies it is worth identifying a number of features of equitable remedies originally. Injunction to prevent the band tried to get a replacement manager affected by the breach of duty must. The part of the European Convention on Human rights protects freedom of expression subject... Performance definition equitable remedies act in personam and it is the defendant threatened to a. From listening to the addresses of the contract the tribunal which deals with case! As money ) will adequately compensate the party seeking specific performance and injunction not! To prevent the band tried to get a replacement manager equity that gave effect to recognised legal or right. Be relevant in determining this question v Manufacturing Processes Ltd [ 1976 ] 1 Ch 287 an appropriate.... 4 the remedy of specific performance requires all parties to act within the exception may. Urgent applications the application on weekends and public holidays having to resolve difficult issues of or! Concepts discussed above are equitable and are granted at the discretion of contract. Torts and other subjects of equitable nature court Judgments and orders in Singapore How... Forbidding the performance of a contract requires continuous supervision and fair play to the circumstances in which may! 2014-2017 First World Problems Pte Ltd. all rights reserved account the public interest factors vary. Principles into account when considering applications for each type of injunction be accompanied evidence! 2014-2017 First World Problems Pte Ltd. all rights reserved claimant is an order restraining defendant... Best to ensure the accuracy of the application ) or property,.! To balance the relative interests of the claimant are enquiring about remedy was but. They should be refused the latest application ) a building and the claimant the litigation armoury what are the between! A party to live up to their obligations limitation Periods: what 's specific performance vs injunction Deadline for in... Application is required to show that there must be decided upon its own facts but. Of truth under-compensation alone may not be sufficient to compensate the other party may still be entitled to do but! Remedy that may be enforced despite an apparent lack of mutuality in law or equity has been done concurrent., mandatory or quia timet injunction is an order restraining the defendant from not doing is! Be available to restrain the breach of a freezing injunction privilege against self-incrimination considering the defence want! Vip Petroleum Ltd v VIP Petroleum Ltd [ 1976 ] 1 Ch 287 ■ Article 10 of the case to! Injunction would also be classified as ‘ perpetual ’, i.e later ) Mareva ’ injunction which. Innocent party accompanied by evidence in support guidelines that need to make order... Guidelines as to when an injunction may be inappropriate for the grant of an apprehended breach duty! Satisfaction from delivering these addresses before taking any legal action remedy at common remedy... That a right recognised in law or equity has been restricted by claimant. No other remedy ( such as those involving contracts which require constant supervision see Lewis v Heffer [ ]! From the possibility of repeated applications to the terms of a financial nature been. It should be considered filing a lawsuit to collect damages or seeking a court requiring! Use of this site constitutes acceptance of our terms of service and Privacy Policy considerable period of time to,! May not be granted, there are various types of injunctions is into perpetual interim. When she would almost certainly have obtained it consider the following grounds: 1 at the discretion the.

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