This chapter addresses issues that must be confronted by litigants who propose to launch judicial review proceedings, and by courts dealing with such claims. First, it considers what sort of decisions can be judicially reviewed. Second, it examines the procedure under which courts subject decisions to judicial review. Third, it looks at the remedies that courts may issue in judicial review proceedings.
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Chapter
14. Judicial Review—Scope, Procedures, and Remedies
Chapter
12. Remedies for breach of trust
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. When property is held on trust, arising expressly or implied by law, any breach of the trustee/fiduciary obligation will lead to a remedy. This chapter explains the personal and proprietary remedies available to the claimant. A personal claim is one made against the trustee/fiduciary personally; it is not based upon the recipient having the property in their possession. A proprietary claim is based upon the defendant having the property or its replacement in their possession and being required to return it, or its substitute, to the claimant. The claimant, after identifying the breach, will often have the choice of which claim to make and there may be more than one possible remedy.
Chapter
16. The remedies of the seller
This chapter considers the remedies available to a seller if the buyer fails to pay for the goods pursuant to a contract of sale. It should be noted at the outset that the term ‘seller’ also includes ‘any person who is in the position of a seller, such as an agent of the seller to whom a bill of lading has been indorsed, or a consignor or agent who has himself paid (or is directly responsible for) the price’. This is of particular assistance to an agent who, having paid the price to the seller with the intention of recovering the money from the buyer, will have the same protection afforded to unpaid sellers as if he or she were the seller directly.
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17. The remedies of the buyer
This chapter sets out the remedies available to the buyer under a contract of sale. Before the Sale and Supply of Goods to Consumers Regulations 2002, these remedies comprised damages for non-delivery of the contract goods, specific performance, and damages for breach of warranty. In cases of breach of condition, the buyer generally has the right to reject the goods and repudiate the contract. Since implementation of the 2002 Regulations, a buyer who deals as consumer has additional remedies of repair, replacement, reduction in price, or rescission. These additional consumer remedies are discussed after a consideration of the remedies that are available to all buyers, including consumers, beginning with those remedies granted to a buyer where the seller fails to deliver the goods, or fails to deliver on time. Certain consumer contracts entered into after 1 October 2015 are governed by the Consumer Rights Act 2015, which is also discussed.
Chapter
20. Judicial Review: Putting It All Together in Problem Answers
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter ties together the loose strands of judicial review to provide a checklist of issues that must be considered in order to diagnose a judicial review problem and to provide a legal opinion for clients. The following questions are addressed: What are judicial review problem questions designed to test? How does one approach a judicial review problem question? How does one approach whether the body may be judicially reviewed? How does one approach whether the client has standing or may intervene in an action? How does one approach whether the other preconditions are met? How does one approach the grounds for review? How does one deal with issues of remedy? How does one provide a final assessment to the client?
Chapter
14. Judicial Review—Scope, Procedures, and Remedies
This chapter addresses issues that must be confronted by litigants who propose to launch judicial review proceedings, and by courts dealing with such claims. The reluctance of the courts to allow their supervisory jurisdiction to be ousted by legislation, their preparedness to hear claims from parties unaffected by the challenged decision when this is necessary for the maintenance of the rule of law, and their willingness to rule in advance on important legal questions all paint a picture in which judicial review plays a fundamental role in ensuring good governance. The chapter first, it considers what sort of decisions can be judicially reviewed. Second, it examines the procedure under which courts subject decisions to judicial review. Third, it looks at the remedies that courts may issue in judicial review proceedings.
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7. The Right to an Effective Remedy
This chapter examines the issue of remedy under the provisions of the European Convention on Human Rights (ECHR), addresses the question concerning the existence of an arguable complaint and the effectiveness of the remedy in the national legal order, and considers proceedings in cases involving violations by persons in an official capacity. It also discusses the approach of the Strasbourg Court in the determination of remedies and the increasing use of Article 13 to tackle repetitive cases by requesting respondent States to create remedies so that the complaints can be dealt with at national level.
Chapter
5. Contract IV: discharge of contract and remedies for breach
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for and how to achieve extra marks. This chapter focuses on contract law. It discusses the discharge of contracts and the remedies for breach of contract where one of the parties has failed in their contractual obligations. Contracts can be discharged through performance, agreement, frustration, or breach. In the event of frustration, the parties can establish their own remedies or they can rely on the provisions developed through the Law Reform (Frustrated Contracts) Act 1943. Remedies have been established through the common law and equity. Damages are the primary remedy in most cases, but equitable remedies include specific performance, injunctions, and rectification.
Chapter
12. Remedies for breach of contract
This chapter examines the various remedies for breach of contract. The principal remedy is an award of damages, the main aim of which is to put the claimant in the position in which he would have been had the breach not occurred. The various types of damages are discussed, notably the distinction between expectation loss and reliance loss, and the ability to claim for financial and non-pecuniary losses. The chapter also discusses restitutionary remedies in cases where the defendant has been enriched due to his breach of contract. Finally, the chapter looks at remedies designed to ensure that persons adhere to contracts, such as specific performance and injunctions.
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19. Restriction of Remedies
Sir William Wade and Christopher Forsyth
Remedies are awarded only to litigants who have sufficient locus standi, or standing. The law starts from the position that remedies are correlative with rights, and that only those whose own rights are at stake are eligible to be awarded remedies. No one else will have the necessary standing before the court. This chapter discusses the old and new law of standing; discretionary power of the court to withhold remedies; exhaustion of remedies; protective and preclusive (ouster) clauses; exclusive statutory remedies; and ‘default powers’, i.e. special powers under which ministers may take steps to compel local authorities to carry out their functions properly.
Chapter
19. Restriction of Remedies
Sir William Wade, Christopher Forsyth, and Julian Ghosh
Remedies are awarded only to litigants who have sufficient locus standi, or standing. The law starts from the position that remedies are correlative with rights, and that only those whose own rights are at stake are eligible to be awarded remedies. No one else will have the necessary standing before the court. This chapter discusses the old and new law of standing; discretionary power of the court to withhold remedies; exhaustion of remedies; protective and preclusive (ouster) clauses; exclusive statutory remedies; and ‘default powers’, i.e. special powers under which ministers may take steps to compel local authorities to carry out their functions properly.
Chapter
17. Tortious defences and remedies
This chapter examines the defences available to a defendant who has committed a tort, and the remedies that may be sought by a claimant in tort cases. Certain defences will provide a complete defence, such as consent and the voluntary assumption of risk, whereas others will merely serve to reduce the damages awarded (such as contributory negligence). Other defences discussed include exclusion of liability, statutory authority, and illegality. The rules relating to the limitation of actions are also discussed. The chapter then discusses the various remedies that may be awarded to a successful claimant, namely damages, injunctions, and self-help remedies.
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23. Members’ remedies
This chapter examines the various remedies available to members, especially minority shareholders, who sustain loss due to wrongful acts or omissions. The chapter begins with a discussion of the derivative claim and looks at the rule in Foss v Harbottle, which generally prevents members from commencing proceedings on the company’s behalf. The chapter discusses the exceptions to this rule, and the process for bringing a derivative claim. The chapter then looks at the unfair prejudice remedy and sets out the requirements needed to obtain a remedy. Finally, the most drastic remedy is discussed, namely the ability to petition the court for an order winding up the company on the ground that it is just and equitable to do so. The relationships that exist between these three remedies are also examined.
Chapter
5. Proprietary estoppel
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on proprietary estoppel discusses the following: the principle of estoppels; the key elements of proprietary estoppel; the importance of the principle of unconscionability; the need for a clear representation or acquiescence; the different types of detriment; the flexibility of an equitable remedy; and the similarities and differences between a proprietary estoppel and a constructive trust. Estoppel seems to offer an exception to the normal rules of legal formality—ie transactions involving land require writing—and so provides a classic example of equity moderating the harshness of the law.
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4. Unfair dismissal—reasons and remedies
Employment tribunals must address three questions when faced with an unfair dismissal claim: Is the claimant entitled in law to pursue his/her claim? Was the main reason for the dismissal potentially lawful? Did the employer act reasonably in carrying out the dismissal? This chapter begins by distinguishing between three different types of dismissal claims that are brought to employment tribunals: unfair dismissal, wrongful dismissal and constructive dismissal. It goes on to discuss the first two of the three questions. It describes the four possible outcomes when a claimant wins an unfair dismissal case: reinstatement, re-engagement, compensation and a declaration that a dismissal was unfair. In practice, compensation is by far the most common outcome. The chapter then considers debates on remedies in unfair dismissal cases.
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8. Remedies in National Courts
This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.
Chapter
15. Ordinary Remedies
Sir William Wade and Christopher Forsyth
This chapter is concerned with the remedies of private law which play a part in public law. First come the remedies related to powers (actions for damages, injunctions, declarations, and relator actions). A final section contains such remedies as private law supplies for the enforcement of duties.
Chapter
15. Ordinary Remedies
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter is concerned with the remedies of private law which play a part in public law. First come the remedies related to powers (actions for damages, injunctions, declarations and relator actions). A final section contains such remedies as private law supplies for the enforcement of duties.
Chapter
4. Equitable remedies in modern English law
This chapter discusses equitable remedies. Equitable remedies apply in all fields of law, from disputes over property or entitlement in contract and intellectual property, to preventing harm, or to the proceeds of wrongdoing being dissipated before a claim can be made against them. Equity evolved these remedies in the Court of Chancery to ameliorate the common law. Sometimes the remedies (like rescission) modified the harshness of the common law rules. Sometimes the remedies (like specific performance and injunction) provide alternative relief to the common law remedy of damages. Key elements of all three actions of recission, specific performance, and injunctions are covered.
Chapter
8. Remedies in national courts
This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.
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