Specific performance
Disputes & Litigation

This remedy is a discretionary remedy available in appropriate circumstances. It is a court order requiring a litigant in legal proceedings to do something to meet the needs of justice. Specific performance is an order made by a court exercising its equitable jurisdiction to compel a person to do an act.

General

The law takes the view that equitable relief will not be available where damages are an adequate remedy. This applies to specific performance as much as any other equitable remedy.  It has been described in the House of Lords as the “heavy handed nature of the enforcement mechanism”. To not do the act or interfere with a person looking to comply with the order amounts to a contempt of court.

In the context of contract law, an order for specific performance would require a person to perform a specified contractual obligation.

There are other matters that a court will take into account prior to granting such an order. The reasons are related to whether it is undesirable or impractical in the administration of justice to grant an order for specific performance. An order is unlikely:

1. In contracts for personal service (consultants, subcontractors and employees) on the basis that is not desirable to order unwilling parties to work together, as such an order would interfere with the party’s personal liberty.
2. where the contract would require constant supervision by the court or constant reference to the court to ensure performance of the contract, by its nature. It is useful to distinguish between situations where constant superintendence by the court would be required and the supervision of a final result (such as a building contract).
3. where severe hardship would be caused to the defendant, such as the losses that would be sustained by the defendant would be well in excess of the loss suffered by a successful claimant.
4. where the claimant has acted unconscionably, although not to the extent that he should be deprived of his legal rights.
5. where a promise was gratuitous, whether by deed or nominal consideration.
6. the conduct of the claimant is such that the remedy should not be made available, that is, if he acted unfairly in his performance of the contract, or induced the party in breach by misrepresentation (which was not legally binding).
7. where the remedy is being sought to avoid a setoff that would be available in a claim for damages.
8. where performance of the order would be impossible.
9. where a contract is so vague that it cannot be enforced at all, such that the obligation cannot be expressed precisely.