Equitable Remedies Intro
1. Equity works on unconsciounability
2. Earl of Oxfords case 1615 per Lord Ellesmere stated:
'The office of the Chancellor is to correct men's consciences for frauds, breaches of trusts, wrongs and oppressions of what nature so ever they be and to soften and mollify the extremity of the law' (SOFTENS THE HARSHNESS OF THE LAW)
Case concerning Chief J Coke being offended to defendent requesting an injunction so indicted him. Chancellor allowed the appeal!
3. Judicature Acts 1873 and 1875: established a concurrent jurisdiction and integrated law and equity (brought them together) Acts state that where equity and law conflict, equity prevails! Shows the sheer power of equity! All judges are now common and equity judges!
Maxims of Equity
Maxims that give judges guidance:
Equity allows the courts to act with discretion and flexibility and act on unreasonability
- 1. Equity will not suffer a wrong without a remedy
- 2. Equity follows the law
- 3. Delay defeats equity
- 4. He who seeks equity must do equity
- 5. He who comes to equity must come with clean hands (honest)
- 6. Equality is equity
- 7. Equity looks to the intent rather than form
- 8. Equity looks on as done which ought to be done
- 9. Equity imputes an intention to fulfil an obligation
- 10. Equity acts in personam (on the person and not undermine law)
- 11. Equity will not permit statute or common law to be used as an engine for fraud
- 12. Where equity and the law conflict, equity shall prevail
LEGAL vs FAIRNESS: Precedents in place in equity to follow as well as the above maxims!
AVAILABLE REMEDIES IN EQUITY:
1. Specific Performance
3. Search Orders
4. Freezing Injunctions
1. Specific Performance
- a. Always at courts discretion
- b. Awarded in personam (so can be land outside UK!)
- c. An order of the court compelling the defendent PERSONALLY to do what promised
Breach of contract demands damages but discretion to award SP: Types of contract:
- 1. Relating to land (often land unique.damages not enough. SP: Sudbrook v Eggleton.
- 2. Relating to chattels (if unique SP awarded as damages not enough: Falcke v Gray: rare antique vase irreplaceable so SP demanded.
- 3. Illegal/immoral contracts (illegal so court won't order SP when contrary to public policy. Wroth v Tyler: husband to start illegal proceedings and court refused SP.
- 4. Without consideration (contract + consideration needed. Penn v Baltimore: if contract a deed signed with wax=an exception to consideration. Wax is consideration.
- 5. Involving personal skill (SP rarely awarded as can't hold someone against will
- 6. Employment (SP rarely awarded as cant compell employee to do something)
- 7. Requiring supervision (SP rarely awarded. CH Giles v Morris: order to sing at event. Wont order SP as how would court supervise singing? Policy and certainty reasons
- 8. Money or commerce (£ normally sufficient. Beswick v Beswick: SP ordered. Nephew refused to pay annually the aunt after promised. Aunt not party to contract so couldn't prove lost £ as not party to contract. If damages ordered could breach so SP better.
1. Specific Performance: DEFENCES
Defences to SP:
1. INVALID CONTRACT : If invalid contract, SP wont be ordered.
2. MISREPRESENATION: Won't order SP as maxim: come to equity with clean hands
3. UNDUE INFLUENCE: Won't order SP as maxim: come to equity with clean hands
4. MISTAKE: Wont necessarily order SP. Legal contract but not always in equity!
5. LACHES/DELAY/LAPSE OF TIME: Hyundai Shipping (duress but waited 8 months) Maxim: delay will defeat equity. Time lapsed!
6. SUPREME COURT ACT 1981 SECTION 50: Can award damages in addition or instead and the act allows for this discretion.
Section 37: 'The high court may by order (interlocutory or final) grant an injunction..in all cases in which it appears to the court to be just and convenient to do so'
2. Interim Injunctions
Interim Injunctions: (temp measures whilst waiting for trial)
- Covered by Senior Courts Act 1981:Section 37: 'The high court may by order (interlocutory or final) grant an injunction..in all cases in which it appears to the court to be just and convenient to do so' Used in ANY law: HRA 1998 impacted this area
- 1. Often used equitable remedy always at courts discretion
- 1a. Legal or equittable cause of action needed (i.e. breach of legal/equitable right)
- Day v Browning: Ashford Lodge name used by 2. Refused injunction. No legal wrong
- Paton v Trustees: Husband have no legal right to stop abortion and then no injunction!
- 1b. Locus standi needed too (cant apply to court as 'too much sex on TV' A.G. to do!
- 2. In personam (personal)
- 3. Contra mundum (to all the world?3rd party injunction, used to be in personam only but Venables v Newsgroup displaced. James Bulger murder and impact of HRA. Injunction granted against whole world to refrain from revealing their new identities and succeeded. Recently this injunction saw 2 people charged with revealing identities)
- 3a. Prohibitory (easiest of 3 to get- to NOT DO something)
- 3b. Mandatory (harded than prohib to get- to DO something)
- 3c. Quia Timet (he who fears i.e. not 100% breached but in feat of, hardest to get)
2. Interim Injunctions
- Awarded without knowing the full case and at courts discretion. Not all evidence will be heard and judges could get it wrong at interim stage!
What do the courts take into account when awarding interims?
1. Stratford v Lindley: Lord Denning, M.R.: case that shows what courts look at. Courts wont grant injunctions unless can show you will win in the final stage/full trial. Heavy burden thats hard to prove. OLD Test from Stratford: PRIMA FACIE test.........
2. Hoffman La Roche v Sec of State: Lord Diplock decided 4 months before Cyanamid but Stratford old rule applied by Diplock? ODD?
2. Interim Injunctions: American Cyanamid
2. Leading case:
American Cyanamid v Ethicon: Lord Diplock:
Case concerning how courts should exercise discretion. Moves away from Stratford case. Cyanamid registered patent for absorbed stitches. At this time most common stitches were made from animal tissue. Ethicon dominated the market of stitches but Cyanamid as a new company broke into the market. Ethicon in competition introduced aborbed stitches too. Cyanamid sought interim injunction for infringement of patent. Complex material submitted and specific. At 1st instance, judge granted an interim injunction as Cyanamid showed prima facie a strong case. CoA reversed decision due to Stratford case principles requiring a strong case to be shown which CoA held they didn't have. Lord Diplock held in House of Lords that decision made at interim stage is being concerned with BIG questions which are only for a full trial. Paperwork should be sufficient at interim stage. HoL's held NO RULE requiring a strong case (as in Stratford). Diplock referred to rule and said it was technical + prevents discretion of courts. HoL's awarded injunction. New rules established
American Cyanamid New Rules
'Balance of convenience' : New rules established by Diplock:
NEW Test from Cyanamid: Frivolous/Vexatious test........
House of Lords
- Step 1: Must not be fivolous or vexatious
- Step 2: Adequacy of damages (would £ be adequate? Not in Cyanamid! Would lose the market and not quantifiable)
- Step 3: Balance of convenience (vary case by case. Quia Timet requires freeze injun)
- Step 4: Status Quo (do nothing)
- Step 5: Strength of parties' case (in Statford case this was the only requirement)
- Step 6: Special factors (case by case, patent judge, once public used to stitches not fair to deprive the public from this use).
These rules/steps are criticised. It is believed that Diplock didnt intend to set down rules!
The American Cyanamid test is plainly at odds with s.12(3) HRA!
Cyanamid is only a starting point: EXCEPTIONS to Cyanamid:
- 1 - Trade Union & Labour Relations Act 1992: British Airways employees striked. BA wanted injunction but legislation prevails and employees allowed by law.
- 2 - Trial unlikely or delayed: Cambridge Nutrition v BBC: BBC documentary which Cambridge went along with however tone was not favourable. Cambridge wanted delay of documentary until government report released. Claimed oral agreement of this delay had been breached. If BBC didnt release now, the 'sting' not there in future and future trial not likely to even take place. Injunction refused as strength of parties case not good enough about the oral agreement. Cyanamid rules ignored and not applicable.
- 3 - No arguable defence
- 4 - Libel: Terry v Persons Unknown: injunction requested claimed libel. Initially granted a super injunction r.e. details of relationship, photos etc. Injunction details not to even be released. High Court, injunction reversed as Terry asked for protection of his reputation and later admitted truth in what papers were trying to publish. 'More probable than not/more likely than not' couldnt be established by him sufficiently! Note: freedom of speech. Rare injunctions as can sue in defamation later.
- 5 - Human Rights Act 1998 section 12
Human Rights Act section 12 effect...
Human Rights Act 1998 section 12/ECHR:
- - HRA creates another exception to when the Cyanamid guidelines will not apply
- - HRA has diminished the Cyanamid rules
- - Controversial area. Freedom to privacy vs Freedom of expression.
- - Act states it is unlawful to act incompatibly with convention rights.
1. Freedom of Expression ARTICLE 10 ECHR: particularly important. Regularly referred to that the judges should have more regard to freedom of expression NOT privacy. Public interest reasons.
2. Right to Privacy ARTICLE 8 ECHR: Where does the threshold lie?
ARTICLE 8 AND 10 ARE ALWAYS COMPETING/CONFLICTING
HRA 1998 S12 Case Law
NB: Human rights only for public bodies. Max can't sue me for human rights breach!newspaper NOT a public body. Cannot assert 'right to privacy' as person so must look at other rights such as 'breach of confidence/misuse of private information' Courts are then under a duty to act compatibly with human rights act.
1. Campbell v MGN Ltd 2004: Leading case. VERY important. Naomi Campbell. HoL's: Naomi left narcotics anonymous meeting. All info published in newspaper. 3 to 2 found in house for Naomi. Most of the judges agreed in England there is no separate cause for invasion. In order to show breach of confidence first must show breach of relationship between newspaper and Naomi. Difficult then to for celeb to show even a relationship! First hurdle, what is cause of action? If have no right to privacy, what cause of action? House were happy to say that the time had come that there is now now need for a prior relationship of trust and confidence (Lord Nicholls). Baroness Hale states article 8 had been engaged and come into play: a reasonable expectation of privacy. Look at facts: drinking in nightclub and employer sees it = no reasonable expectation to privacy but at friends house having drink, privacy of conversation is a reasonable expectation. Naomi did have a reasonable expectation of privacy at narcotics. Then, need for balance of expression vs privacy. Is it in the public interest? One judge explained if just words of her may be decided differently but as photos it went too far. Section 12: was photo released already? YES. The literature/writing was not a breach but the photo was a breach!
HRA 1998 S12 Case Law cont'd
Cream Holdings v Banerjee 2004: HoL's: Lord Nicholls,Woolf, Hoffmann; Scott, Bar Hale
Cream nightclub in Liverpool. In cahoot with officials (backhanders). Former employee alleged the problems and took confidential papers to editor of Liverpool paper and Story was released and Cream sort an injunction to prevent any further releases. Confidentiality agreement signed by employee but publication argued to be in the publics interest. Court of Appeal upheld the 1st instance outcome, injunction given. Court of Appeal looked at 2 options: 'is likely' will win at full trial = widely construed. 'more probable than not' OR 'real prospect of success convincingly established'. House of Lords scrutinised these 2 options: 'is likely, more likely than not he will succeed at trial' vs 'more likely than not'. 'More likely than not' = higher threshold to cross than 'more probable than not'. 'More probable = balance' BUT 'more likely than not' = higher threshold and favours freedom of expression and thus can be seen as a victory for newspapers. Distinguished Cyanamid.
Safeguards: Courts must safeguard freedom of expression which is expressly written but nothing expressed about right to privacy per se.
Balancing exercise: Award of damages can help restore a reputation which is a good safeguard for freedom of expression. An award of damages when private information is breached, is not sufficient as the 'cat is out of the bag'. Damage is done!
HRA 1998 S12 Case Law cont'd
Case law cont'd:
1. Von Hannover v Germany 2004: Important case that shows the law developing in this area. Private photos always being taken. Domestic courts in part upheld claim but did say that she would have to tollerate it. Then appealed to ECtHR (European Court of Human Rights). Photos were taken when she lived an entirely private life and court felt that the photos made no contribution and discussed expectancy of privacy.
2. Griffin Case: marmite applied for injuction to restrain BNP from using marmite as a slogon. Cream Holdings case applied. Section 12(3) HRA must establish that 'more probable than not' chance of winning at full trial. However was held for situations where less degree threshold required when graver scenarios occur to get an injunction will be acceptable and flexible.
Douglas v Hello!
3. Douglas v Hello!: Lord Hoffmann, Nicholls, Walker, Baroness Hale, Lord Brown. Confidentiality breached but injunction at 1st instance not granted. Douglases sought injunction to prevent the publication of photos. Claimed for breach of confidence, invasion of privacy, Data Protection Act 1998 breach and intention to damage and conspiracy to injure. Only successful claims were for breach of confidence and for the breach Data Protection Act. High Court granted injunction but this was reversed by the Court of Appeal. Brooke LJs restated the three requirements for there to breach of confidence; 1. There has to be an obligation of confidence;2. It arises only on private occasions 3. The prospective claimants have to make clear that no photographic pictures are to be taken.Brooke LJ ruled that the couple could not expect privacy at a wedding with 250 guests. In Douglas v Hello! No 2 OK! magazine and the Douglases were successful in claiming for breach of confidence against Hello! Ltd. 2005 The Judge (Lindsay J) upheld the Douglases claim to confidence. Hello appealed to the Court of Appeal who ruled that the OK magazine retained confidence in publishing photographs that the Douglases agreed should be published but retained a right of privacy in remaining photographs. The only way in which OK magazine could recover damages against Hello was through a claim for breach of confidence.The House of Lords agreed in a 3-2 judgment that the photographs of the wedding were confidential, that there were circumstances of confidence and that publication of the photographs had been to the detriment of OK magazine.
3 & 4: Search orders and freezing injunctions
3 & 4:
Search orders and freezing injunctions:
Search Orders: (The order is named after the English case of Anton Piller KG v Manufacturing Processes Limited per Ormrod LJ)
- Typically obtained ex parte (i.e. in secret/no notice)
- Formerly Anton Piller
- Strong prima facie case needed
- Able to show actual or potential damage of serious nature
- Evidence that documentation exists and there is risk of their destruction
Freezing Orders: (Mareva Compania Naviera SA v International Bulkcarriers SA
- Typically obtained ex parte (i.e. in secret/no notice)
- Formerly Mareva
- Must show good arguable case
- Must show real risk that any judgement will go unsatisfied
- It is just and convenient in all the circumstances
1. Stratford: OLD test: Prima Facie. Not starting point but still good law
2. Cyanamid 1975: NEW test: Frivolous/Vexaious: now starting point from House of Lords. After Cyanamid, now easier to get injunction but very criticised.
3. Human Rights Impact section 12: ECHR article 8 and 10
4. Cream Holdings
Academic Commentary: Cyanamid
- Series 5 Software v Clarke, Laddie J. while deciding a case of copyright infringement stated:“In my view Lord Diplock in Cyanamid did not intend by the last quoted passage to exclude consideration of the strength of the case in most applications for interlocutory relief. It appears to me that what is intended is that the court should not attempt to solve difficult issues of fact or law on an application for interlocutory relief. If, on the other hand, the court is able to come to a view as to the strength of the parties’ cases on the credible evidence, then it can do so … If it is apparent from that material [the affidavits] that one party’s case is much stronger than the other’s then that is a matter the court should not ignore. To suggest otherwise would be to exclude from consideration an important factor and such exclusion would fly in the face of the flexibility advocated earlier inAmerican Cyanamid. As Lord Diplock pointed out in Hoffmann-La Roche, one of the purposes of the cross-undertaking in damages is to safeguard the defendant if this preliminary view of the strength of the plaintiff’s case proves to be wrong.
- National Commercial Bank of Jamaica v Olint Corp Ltd that the strictures passed in Cyanamid against a merits review are irrelevant. In that case, which concerned interim mandatory injunctions, Lord Hoffmann indicated that among the matters which the court may take into account in granting interim injunctions was the nature of the prejudice the party may suffer and the likelihood it may occur.
Personal Opinion on Cyanamid: (from Oxford Doctorate Student)
Given an option between having mechanisms promoting procedural justice followed by a prolonged trial process, or an interlocutory hearing resembling a mini-trial followed by settlement and procedures promoting timely justice, most parties would choose the latter.
The solution to this problem is to reduce delays and make the current procedural system more “just”. However, it would take years for any changes brought into the system to bear fruit. Until such time, however, as a short term measure, we must focus our energies on making the current system more acceptable to standards of justice. If parties wish to get timely justice, then the courts must facilitate it—even if it means deciding interim injunction applications on the relative strengths of each party’s case and reverting back to the pre- Cyanamid situation.
Cream Holdings Commentary: Restraint on freedom of expression under the Human Rights Act: Cream Holdings Ltd v Banerjee in the House of Lords: Peter Devonshire
In Cream Holdings the House of Lords addressed a narrow point of construction that has significant ramifications to the reception of the Human Rights Act in English law. The purpose of s.12 was to assuage concerns that human rights legislation would have the effect of subordinating press freedoms to the right to privacy. The facility with which interim injunctions are granted to restrain freedom of expression is an obvious measure of whether this is in fact the case. Cream Holdings has resolved uncertainty on this point, adopting a relatively onerous threshold for prior restraint.
At the same time it was accepted that freedom of expression cannot be read in isolation and must necessarily be reconciled with other Convention rights. Notably, there is a tension between privacy rights under Art.8 and freedom of *C.J.Q. 199 expression under Art10.27 In pronouncing on s.12(3) Lord Nicholls avoided becoming mired in the dense philosophical and interpretative issues surrounding the internal relationship between Convention rights. Undoubtedly, broader doctrinal debates will be waged which may impact on these relationships and potentially qualify aspects of Cream Holdings. In the meantime, the media in its different forms has more than a modest reason to celebrate.
Human Rights Commentary:
'Injunctions and the protection of privacy',