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Chapter

Cover Contemporary Intellectual Property

21. IP enforcement and remedies  

This chapter discusses civil intellectual property enforcement and remedies available in the event of infringement. It considers the UK rules on liability for groundless threats of infringement, including recent UK legislative developments in this field. It goes on to consider a range of interim remedies (including interim injunctions) and final remedies (including injunctions, intermediary injunctions, publicity orders, damages, and accounts of profits), all in the context of the EU IP Enforcement Directive and Court of Justice and UK case law developments.

Chapter

Cover Contract Law

24. Specific Performance  

Specific performance is a remedy which orders the defendant to perform his obligations under the contract. It is an equitable remedy which is available in the discretion of the court. This chapter examines the circumstances in which the courts will make a specific performance order. Particular attention is given to the decision of the House of Lords in Co-operative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd [1998] AC 1. It also considers the question whether English law should develop a more liberal approach to the availability of specific performance and recognize the existence of a general right to specific performance.

Chapter

Cover Administrative Law

14. Restriction of Remedies  

Mark Elliott and Jason Varuhas

This chapter considers various factors that may prevent claimants from obtaining relief via judicial review. It first discusses the provisions of the ‘Pre-Action Protocol’ regarding court permission for judicial review before considering the requirement to exhaust alternative remedies. It then reviews the time limits for those who wish to use the judicial review procedure, focusing on the requirements of Senior Courts Act 1981 and Civil Procedure Rules Parts 3 and 54. It also explores questions of ‘prematurity’ and ‘ripeness’, along with the courts' general approach to the exclusion of judicial review and the role of standing, or locus standi, in initiating judicial review proceedings. The chapter concludes with an overview of the application of the ‘no difference’ principle in dealing with restriction of remedies.

Chapter

Cover Equity & Trusts Law Directions

18. Tracing  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Trustees have personal liability in an action for compensation or account. If the action proves worthless in practice because the trustees are impecunious or have been declared bankrupt, and hence cannot repay trust monies to the fund, the beneficiaries may be able to trace the value of their trust property into bank accounts and into assets that have been bought with the trust property. It is the value of the trust property, not the precise item of the property itself, which is sought or traced in most cases. Tracing is a process that gives rise to the ultimate remedy of recovering misapplied money or property. This chapter examines tracing and the limits to common law tracing, the distinction between proprietary remedies and personal remedies, and how the rules for tracing in equity may be applied to unmixed funds, mixed funds and assets purchased with such funds. It also discusses the artificiality of the distinction between common law and equitable tracing rules, defences to the common law restitutionary claim and advantages of proprietary rights.

Chapter

Cover Concentrate Questions and Answers Land Law

12. Mortgages  

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions about the law of mortgages. The questions deal with issues such as their creation; clogs on the equity of redemption; the remedies of a mortgagee and protection of the mortgagor; and undue influence. Remedies of a mortgagee where the mortgagor defaults is an area of the law where, over recent years, the courts have had to consider entirely new social circumstances in relation to ‘negative equity’ and mortgage debt.

Chapter

Cover Family Law

4. Property Division on Divorce  

Polly Morgan

At the end of a marriage or civil partnership, it is necessary to consider the practical and financial arrangements for the parties’ future: how they will share the value of the house(s), the pensions, and the savings and investments; who pays the debts; who gets personal belongings and furniture; and who has what income to live on. The law will only give effect to agreements that are objectively fair. If the parties cannot agree on a fair settlement, then courts have the power to impose a settlement on them by making a ‘financial remedy’ order in whatever terms it thinks are objectively fair. This power does not apply to unmarried couples. This chapter looks at what the court can do, the legal principles and practicalities that govern property redistribution, and some contentious issues and problems that may arise in financial remedy practice.

Chapter

Cover Essential Cases: Land Law

Guest v Guest [2022] UKSC 27  

Essential Cases: Land Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Guest v Guest [2022] UKSC 27, Supreme Court. The document also includes supporting commentary from author Aruna Nair.

Chapter

Cover Equity

6. Supplementing Civil Wrongs  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter illustrates escalating concerns about the risk of unacceptable disjunctions between Equity and the Common Law. The first section considers the relatively simple matter of Equity supplementing existing Common Law remedies. The next sections consider the more controversial question of Equity and the Common Law embarking on separate paths to deal with the same underlying wrong of negligence. The final sections deal with the intractable problem of how Equity protects Equitable property from abuse by the trustee and interference by other third parties. Each section explores the differences between the Equitable rules and their Common Law counterparts. It is crucial that these differences be soundly justified if they are to remain part of the common law.

Chapter

Cover Administrative Law

17. Boundaries of Judicial Review  

Sir William Wade and Christopher Forsyth

This chapter discusses the scope of judicial review. Judicial review is a procedure for obtaining the remedies specified in the Senior Courts Act 1981, namely the quashing order, the prohibiting order, and the mandatory order and declaration and injunction. The scope of judicial review, therefore, is the same as the scope of these remedies. Their boundaries, as set out already, are fairly clear, but in the non-statutory area they are uncertain.

Chapter

Cover Wade & Forsyth's Administrative Law

17. Boundaries of Judicial Review  

Sir William Wade, Christopher Forsyth, and Julian Ghosh

This chapter discusses the scope of judicial review. Judicial review is a procedure for obtaining the remedies specified in the Senior Courts Act 1981, namely the quashing order, the prohibiting order and the mandatory order, and declaration and injunction. The scope of judicial review, therefore, is the same as the scope of these remedies. Their boundaries, as set out already, are fairly clear, but in the non-statutory area they are uncertain.

Chapter

Cover Competition Law of the EU and UK

6. Procedure: penalties and leniency arrangements  

This chapter explores the financial penalties imposed for breaches of competition law in the EU and the UK. Broadly speaking, enforcers have three kinds of ‘weapons’ in their arsenal to use against those who attack competition: remedies, imprisonment, and fines. The first of these weapons may be the most powerful, and includes conduct, structural, and third-party remedies. Incarceration — the second weapon — is a well-publicized feature of the US system, and has been an option in the UK in relation to hard-core cartel conduct since the entry into force of the Enterprise Act 2002 (EA). The argument in favour of the efficacy of fines, the third weapon, is a persuasive one: companies take part in anti-competitive conduct in order to boost profits; remove those profits and the incentive for illegal conduct vanishes.

Chapter

Cover Public Law

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. 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.

Chapter

Cover Complete Public Law

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

Cover Equity & Trusts

17. Personal Claims and Remedies  

Paul S Davies and Graham Virgo

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter considers the personal liability of trustees for breach of trust and studies proprietary remedies, which involve the claimant’s recovering particular property from the defendant, or obtaining a security interest in the defendant’s property. Proprietary remedies provide the crucial advantage of providing the claimant with priority over other creditors in the event of the defendant’s insolvency. Personal claims, by contrast, do not enjoy such priority over the claims of others. However, where the defendant is solvent and the property in question has fallen in value, a personal remedy for the value of the claimant’s loss or defendant’s gain may be preferable to a proprietary remedy. Personal remedies are also to be preferred when the property in which the claimant had a proprietary interest has been dissipated, because in such circumstances no proprietary remedy will be possible.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

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

Cover Tort Law

9. Damages, Compensation, and Responsibility  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter deals with remedies, particularly monetary remedies, and remedial issues in relation to torts. Before discussing compensation and responsibility, it first considers the heads of loss for which damages in tort may be awarded, and some serious conceptual difficulties involved with this. It then looks at the potential for non-compensatory awards and the challenge to tort law represented by the growth of damages under the Human Rights Act 1998. It also assesses recent developments with respect to the assessment and delivery of damages, the funding of litigation, and the relationship between tort damages and welfare support.

Chapter

Cover European Intellectual Property Law

25. Remedies  

Justine Pila and Paul L.C. Torremans

This chapter deals with the enforcement of IP rights. Such enforcement takes place in search of redress and that redress is obtained in the form of remedies. The discussion focuses on remedies at a national level, i.e. the content of the applicable law determined by the court with competent jurisdiction, be it at a procedural or substantive level. It first looks at civil remedies. Civil proceedings brought by private parties are the norm in the enforcement of private rights, and thus take the lion's share of the enforcement and remedies effort in relation to IP rights, since the latter are very clearly private rights. The chapter then turns to criminal remedies. While criminal proceedings do not play an important role in the area of IP, some offences do exist and these types of proceedings are specifically concerned with cases of infringement that are seen as particularly serious from a public policy point of view. Examples include actions against copyright or trade mark pirates.

Chapter

Cover Card & James' Business Law

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.

Chapter

Cover Complete Public Law

19. Remedies  

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 discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998 (HRA 1998), including a declaration of incompatibility in accordance with section 4 HRA 1998.

Chapter

Cover JC Smith's The Law of Contract

29. Remedies beyond compensatory damages  

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving them of their profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform their contract. Injunctions can either prevent a person from breaching their contract (prohibitory injunctions) or force a person to comply with their contract (mandatory injunctions).