Equitable Remedies

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Monetary awards in Equity

Damages is a CL remedy intended to compensate for the breach of the parties from that point on

Equitable relief kicks in when CL remedies are in adequate/insufficient (AG v Blake-account of profits ordered, damages insufficient)

Equity may offer damages through Lord Caine’s act.

Damages under Lord Caine’s Act (Chancery amendment Act)

1) Definition and Background:

Discretionary act that empowered the Chancery court to offer damages in substitution (key words given that equity’s role is not to give damages) of SP/injunction

And also give damages as an adjunct to SP/injunction

For recovery:18/02/2015 2

Nature of injury immaterial (whether in tort or contract)

Can recover in equity cases u cannot at CL (leases where p is not a party, restrictive covenants)

Leeds Industrial v Slack :issue: whether the provisions of LCA was saved- P complained about an obstruction of light (had not yet occurred), no injunction granted, substituted with damages and future injuries. Act was saved by supreme court and land revision act.

2) Measures of the damages-the same (Leeds Industrial v Slack: money awarded cannot be just unless equivalent to injunction/SP)

No new type of damages created, same as CL

Filled the gap of unavailability of relief in CL

“in substitution” impacted quantum (not it was given in substitution or adjunct in some cases)

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a)Effect of in substitution on Quantum of damages (Bredero case: by way of LCA...parliament must have intended...that the court be able to award damages as would achieve a fair result...LCA effect substantial and not merely procedural change):

Extension of the ward of damages to future and continuing losses

Loss assessed to the equivalence of injunction/SP

Circumstances of award of damages under LCA

Courts award damages in instances where no real loss have been suffered:

Applicant satisfied the requirement for SP/Injunction, but order not granted (damages substituted)

Unjust enrichment (def benefitted from wrong doing)

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Trespass to land (see user principle)

P suffered no financial/or other loss

Not to give an award beyond nominal equivalent to remedy may be unfair (Wroth v Tyler- breach of contract for the purchase of a house-court should award damages as if contract was performed thus measured by the difference between contract price and the date of breach. LCA’s effect on this, impacts quantum although equity follows the law because it should constitute a true substitute of SP which was not granted)

User principle: defendant used and profited from my propertyBasis for damages: Loss of opportunity18/02/2015 5

Implied contract

Damages granted for the use of my property(albeit no real loss suffered)

b) In substitution towards a restitutionary model:

Ralph Cunnigton: makes distinction between compensatory relief(losses actually sustained by P) and restitution (gains made by the defendant) seem emphasis is more on the gains made by the def. Have the lines been blurred.

Controversy:

Wrotham Park Estate: first shining beacon because:

Awarded restitutionary damage based on percentage of def’s gains. (main controversy)

More accepted view, not necessarily a shining beacon, but a show of compensatory power of the court (LCA)

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Tutorial 27.2.13/67

Surrey v Bredero(controversy continued)

Appropriate measure of damage was the issue

No restitutionary damage on the ground that there were remedies in contract and restitution was to put the person position as if the contract had been performed

No financial loss suffered

If restitutionary damage was to be given, it would create uncertainty in contract and have a major impact on commercial trading

Inconsistent with Wrotham park whose policy was unjust enrichment

Controversy settled because AG v Blake and Experience Hendrix agrees with the policy position of unjust enrichment and Blake damages may be measured by d benefits gained by the wrongdoer.

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Accounts of profit: 1) Definition

Equitable remedy applied when there is a breach of fiduciary duty

Action is against def to prevent unjust enrichment An entitlement for P as if he was conducting the

business. Generally: surrender profits earned form the

wrongdoing Instances when Account for profits would be given:

Reflo Ltd v Varsini: Businessman who breached fiduciary duty and received money from a director who was diverting the funds was made to account for the funds

Board v Phipps: account for profits may be awarded where there are no dishonesty by the fiduciary duty

Caribbean Palmer v STock: intellectual property rights – infringer required to give up ill gotten gains.

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2) Transition of Equity:

Accounts of profit was originally a CL remedy that was transferred to equity because:

Of cumbersome procedure

Expertise such as auditors was in the chancery Courts

Presence of the CL remedy of damages

3) Cases of breach of trust/fiduciary duty classes remedy

AP standard remedy to ensure fiduciary acts honorably

6) Breach of contract:

Original remedy is breach of contract is damages

Damage inadequate courts may consider an award of AP (AG v Blake: contractual case where the accounts of profit was granted as the damages were inadequate-exceptonal circumstance; Esso petroleum v Niadsupport Blake)

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7) difference between AP and LCA:

AP: def must give up ill gotten gains to P’ whose right have been infringed

LCA: Compensates party wronged and loss suffered (may be a fiction)

AP: equitable remedy that is discretionary

LCA: award of damage is a remedy as a right for loss suffered/breach(liabilty must be proved)

AP: wrong doer must account for profits

LCA: damage is awarded in substitution of SP/inj because of the loss of bargaining opportunity (note there may be no financial loss per se)

Colbeam Palmer v Stock affiliate: P alleges infringement of trade mark by def. Injunction was not granted thus an account of profits.

8) Election between an AP and LCA

Right for C to get either

Effect of choice is the quantum to be recovered18/02/2015 10

Conclusion:

Blurring of the lines have occurred between compensation and restitution:

AP equitable remedy for breach of equitable rights

Introduction of AP in CL actions (AG v Blake)

CL damage to action based on breach of equitable rights

Developed as a result of LCA

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