Overview Contribution and recoupment are restitutionary in nature. They are remedies which have a similar effect to restitution for unjust enrichment. Recoupment may arise where the claimant pays the respondent’s debt or obligations. Some element of compulsion is required. The principles of contribution apply where persons have liability in common. This may include co-owners, partners or other joint owners. The […]
General The general principle is that a person who assists another, even in circumstances of necessity, has no legal right of recovery. Recovery by way of restitution may be available in some cases where a person spends money or assists another in circumstances of necessity. There are a number of narrowly defined circumstances in which restitution may be available. Where […]
Breach of Contract A person might deliberately breach a contract, in circumstances where the damage to the other party is less than what he gains, so that he profits from his breach. He might be said to benefit from his wrong. However, it is argued that such breaches are economically rational, justifiable and should be encouraged. This is on the […]
Contract Mistakes & Other Mistakes Many of the circumstances in which restitution is allowed, might be categorised as deriving from a mistake in its broadest sense. A mistake may be a basis for unjust enrichment. It may be the unjust factor allowing recovery by way of restitution. This broader concept of a mistake is discussed later in this section. Where […]
Restitution & Public Bodies Public bodies are subject to the general law. They are accordingly subject in the same way as a private person, to the possibility of restitution on ordinary grounds. Public bodies are usually formed by statute or as companies under a statute. They are usually established with certain objects and powers relevant to their public function. The so-called […]
Enduring Title Where assets such as goods are obtained by fraud, the title does not pass to the wrongdoer. The same principle applies to the other limited categories of case, where the contract is wholly negated. The title endures and may be recovered as such. The claim to take back the asset is a proprietary claim. The right to resume […]
Overview An injunction is a court order compelling the person to whom it is addressed to do or refrain from doing something specified in the order. More commonly, because of the practicality of enforcement, they will restrain a person from doing a particular act. It will, accordingly, be framed in negative terms in most cases. The Court will always retain […]
Injunctions without Notice The High Court and Circuit Court have powers to grant injunctions, including an interim and interlocutory injunction. The District Court does not have the power to grant equitable remedies such as an injunction. Administrative tribunals, such as the Employment Appeals Tribunal, do not have the power to grant an injunction. The Courts which exercise equitable jurisdiction (the […]
The Pre-Trial Injunction An injunction may be granted at an early stage in proceedings to preserve the status quo until the full trial. Legislation and Court rules provide that an injunction may be granted where the court thinks that it is just. Generally, an injunction is prohibitory, i.e. it is worded in the negative. Injunctions are equitable remedies. Their origin […]
Mareva Injunction In exceptional cases where a necessity can be shown, the court may make an order (usually) at the commencement of litigation in order to freeze the assets (or some of the assets) of the defendant. The purpose is to ensure that the assets concerned are not removed from the jurisdiction (outside the control of the court), which may […]
General The law on damages is almost entirely judge made. There is very little statutory law which is of relevance. Accordingly, the principles are found in various cases. The principles on which damages are assessed and awarded have evolved over time. In civil claims, damages which are monetary compensation for loss or injury are the principal remedy. The law does […]
General A Specific Performance Order is an order to perform a contract. As with an injunction, it is an equitable remedy. It is the type of remedy originally granted by the Chancery Court. It is now available in the higher courts. However, as with an injunction, an order of specific performance will usually only be granted where damages are not […]
Overview Restitutionary damages seek to undo unjust enrichment. They seek to recoup benefits which have accrued to a wrongdoer, which exceeds the loss to the person who has been wronged. Compensation for breach of contract may comprise or include a restitutionary element. In other cases, restitutionary remedies are granted in circumstances where is no contract or where there was a […]
Nature of Order An Anton Piller order is a relatively novel type of injunction which may be granted prior to trial. Its purpose is to preserve evidence. It requires the defendant to permit the claimant, together with (usually) a solicitor, to attend at the defendant’s premises in order to inspect and, if necessary, take copies of documents mentioned in the […]
General Where assets have not become mixed but have been merely substituted and are held by another, common law tracing is available. Common law tracing is available while the asset retains its identity. Tracing is an equitable remedy by which a claimant may claim assets which have become mixed with those of another or have changed their original form. Tracing is […]
Nature Rectification is an order for the correction of a document. Courts cannot alter the terms of the agreement. However, where an agreement has not been correctly incorporated in a document the document may be corrected. There is a heavy burden on a person who seeks to prove rectification of a written document. There is a strong presumption that the […]
Meanings of Rescission Rescission has a number of legal meanings. Where one person has committed a fundamental breach of contract the innocent party has the option to treat the contract as terminated and to claim for damages. Alternatively, he may elect to enforce it (and in some cases also claim for damages. In this sense rescission is the act of […]
General A declaration is an order stating the rights of the parties. It does not compensate or require any person to do anything. It defines in a conclusive way the rights of the parties. A declaration may be granted as part in legal proceedings as a single remedy or as part of a number of related remedies without any other […]
Overview The rules on remoteness may limit the extent to which the claimant may recover or may preclude recovery entirely. There is liability for negligence where there is a breach of duty causing damage, and the damage is not too remote. Where loss or damage has been caused by the defendant, but it is too far removed as a consequence […]
Damages not usually awarded for Mental Distress As a general principle, a person breaking a contract is not liable for the distress, frustration, anxiety, tension, displeasure or aggravation which the breach causes. However, damages for mental distress have been allowed in certain categories of case such as where leisure services are provided, as in the case of a package holiday. […]