Equitable — common mistakes

In an exam problem question, first establish if there is a breach of contract. Then, assess whether damages would be an adequate remedy. If not, explain why (e.g., unique subject matter, difficulty of quantification) and consider specific performance or an injunction. Always conclude by discussing any potential bars to the remedy, such as 'clean hands', supervision, hardship, or delay, using case law to support your analysis.

No, this is a common misconception. Equitable remedies like specific performance are not an automatic right or an alternative choice for the claimant. They are granted at the court's discretion and only in exceptional circumstances where monetary damages are proven to be an inadequate remedy. For most breaches involving standard goods or services, damages will be considered sufficient.

No. A court will not grant an injunction that has the indirect effect of compelling specific performance of a personal service contract. While it might grant an injunction preventing the musician from recording for a rival label during the contract term (Warner Bros v Nelson), it cannot force them to perform for the original label. This would be an infringement of personal liberty and impractical to supervise.

Yes, it matters significantly. The maxim 'delay defeats equity' (the doctrine of laches) means that an unreasonable delay in bringing a claim can cause the court to refuse an equitable remedy. If your delay has prejudiced the defendant or suggests you have accepted the breach, you may lose your right to specific performance or an injunction, even if you would have otherwise been entitled to it.