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Specific relief · Remedies module 6

The idea

Specific relief asks whether the plaintiff can have the promised thing itself rather than money for losing it. Everything in this module begins with whether damages are inadequate to do complete justice. Everything after that point is discretion. A court persuaded that money cannot repair the loss still asks whether it can enforce the order sought, whether any of the settled bars applies and whether restraint is needed before trial. Most of the marks sit in treating each bar as an element with its own authority. This is because examiners write facts that raise two or three bars at once, and the weak answer argues fairness in general while the strong answer runs the bars one by one.

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. First ask whether the claim qualifies at all. For specific performance there must be a contract the plaintiff is ready and willing to perform, and damages must be inadequate to do complete justice. Land is usually treated as unique. Goods qualify only where no substitute can be bought in any market, and a temporary shortage of an ordinary good is not enough.
2. Identify the order sought and test whether a court can enforce it. Specific performance enforces the contract going forward. A mandatory injunction compels a defined act and reaches torts, so keep the two orders separate. Courts refuse orders requiring constant supervision of ongoing activities or compelling personal service. They will enforce a sufficiently defined result.
3. Run the discretionary defences one by one. Hardship, delay, unclean hands and a completed state of affairs are each elements with authority rather than a general appeal to fairness. An injunction may also be refused for the public interest, or where undoing what has been built would waste more than the plaintiff gains.
4. Ask whether the plaintiff needs relief before trial. An interlocutory injunction is an order made before final judgment to hold the position in the meantime. It requires a sufficient likelihood of success, a balance of convenience favouring restraint and the usual undertaking as to damages. The undertaking is the applicant's promise to compensate the defendant if the injunction turns out to have been wrongly granted, and it is a real cost to advise on. The strength of case required scales with the gravity of the relief.
5. Check for a wrong that is threatened but has not yet happened. Relief against such a wrong is called quia timet, which means the plaintiff acts because the harm is feared rather than suffered. The plaintiff must prove the threat instead of waiting for the damage.
6. Conclude with the order and its conditions. Name the order, the pivotal fact that carried it and the minimum the plaintiff recovers even if the order is refused.

Cases at a glance

Case	In a line
Dougan	A taxi licence was scarce and unobtainable in the market. Specific performance was ordered because no money award could buy a substitute
Cook	The good was in short supply but the shortage was temporary. Damages remained adequate because the good could still be replaced on the market
Argyll Stores	A covenant to keep a business open was broken. The order enforcing it was refused because it would require constant supervision of an ongoing activity
Diagnostic X Ray	An order for a sufficiently defined result can be enforced despite the bar on supervising ongoing conduct
Gillespie	Authority on the same line, between a defined result a court can enforce and ongoing conduct or personal service it will not compel
Bendal	Scaffolding intruded on the plaintiff's property. The continuing trespass was restrained because damages were inadequate
Aristoc	The goods were specialised plant. Interference with goods of particular utility can be restrained by injunction
Miller	The wrong arose from village cricket. The injunction was refused for hardship and the public interest
Wrotham Park	The houses had already been completed. Undoing a completed state of affairs would be an unpardonable waste, so the plaintiff was left to damages
O'Neill	The court explained Beecham rather than replacing it. The likelihood of success required scales with the gravity of the relief sought
Beecham	The source of the interlocutory test. The applicant must show a sufficient likelihood of success together with a balance of convenience favouring restraint
Lenah	An applicant for interim relief must show an underlying right to final relief. An injunction protects a legal or equitable right that is infringed or threatened

The rules

R48 · What must be shown before specific performance or an injunction is available? For specific performance there must be a contract the plaintiff is ready and willing to perform, and damages must be inadequate. For an injunction the plaintiff needs a legal or equitable right being infringed or threatened. Lenah. Trap. Specific performance and the mandatory injunction are different orders. Specific performance enforces the contract going forward and needs readiness and willingness. A mandatory injunction compels a defined act and reaches torts. Analyse them separately.

R49 · When are damages inadequate so that specific relief is available? Specific relief requires that damages be inadequate to do complete justice. Dougan. Adequacy asks what money can buy rather than how much is offered. Test every market before calling the thing irreplaceable.

R50 · When will supervision or personal service bar specific performance? Courts refuse orders requiring constant supervision of ongoing activities or compelling personal service but will enforce a sufficiently defined result. Argyll Stores; Diagnostic X Ray; Gillespie. Trap. Discretion argued as a general appeal to fairness. Each bar is an element with authority. For negative covenants start from enforcement nearly as of right, displaced only by hardship, acquiescence or a completed state of affairs.

R51 · When will an injunction issue to restrain a continuing wrong? An injunction restrains a legal wrong where damages are inadequate including continuing trespass and interference with goods of particular utility. Bendal; Aristoc. Trap. Quia timet relief and the undertaking are the two points answers forget. Damage that is threatened but has not yet occurred is restrained quia timet. The undertaking as to damages is a real cost, so advise on it.

R52 · When may an injunction be refused despite an established wrong? An injunction may be refused for hardship and the public interest or where undoing a completed state of affairs would be an unpardonable waste leaving the plaintiff to damages. Miller; Wrotham Park. Refusal leaves the plaintiff to damages, so state what that money award would cover.

R53 · What must an applicant show for an interlocutory injunction? An interlocutory injunction requires a sufficient likelihood of success to justify preserving the status quo, a balance of convenience favouring restraint with the required likelihood scaling with the gravity of the relief, an underlying right to final relief, and the usual undertaking as to damages. O'Neill; Beecham; Lenah. Trap. O'Neill explains Beecham rather than abolishing it. The strength of case required scales with the gravity of the relief. Examiners have asked which formulation is preferable.

The flowchart

The specific relief flowchart runs the attack plan as a single page of decisions, from the adequacy question through the bars to the interim orders. It ships with the Remedies flowcharts page at /remedies/flowcharts. Until that page is live the chart sits in Remedies Flowcharts (the companion document to the schematic).

A worked example, dissected

Mireille restored a 1912 carousel and contracted to buy a heritage carousel organ from Volkov for $130,000. The organ is one of only two working examples in Australia, and Volkov repudiated after a collector made him a better offer, returning her deposit with $20,000 for the disappointment. The only other example sits in a museum that will not sell at any price, and importing one would take at least three years on uncertain permits. Mireille holds the balance in a dedicated account, has built the organ housing and has not banked the cheque.

The full problem, with its Pass answer, H1 answer and examiner's comments, is Problem 1 of the specific relief drill bank on the practice page.

Practise this module

Ten drills in the specific relief bank cover every rule above, and the exam tier runs the module inside integrated scenarios. Start with the quick drills on the adequacy of damages, then attempt the bank blind.

Practise this module →