Equitable Remedies

1. Equitable Remedies
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2.  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:
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3.  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)18/02/2015 3

4.  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)18/02/2015 4

5.  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
property
Basis for damages:
Loss of opportunity18/02/2015 5

6.  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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7.  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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8.  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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9.  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 Niad
support Blake)
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10.  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 recovered
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11.  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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