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17/11/23

Specific Performance | Contractual Default Remedy

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An Order for Specific Performance is a remedy which may be granted by a court when resolving a contract dispute.

The intent behind the granting of Specific Performance is to compel the defaulting party to perform the positive contractual obligations that were promised as part of the contract.

Such an Order is discretionary in nature, meaning that it is for a Judge to decide whether granting one is appropriate in the circumstances.

The court may award an Order for Specific Performance to achieve an equitable result, i.e. one that is fair and reasonable and provides equal treatment to everyone. In so doing, the court may introduce conditions not included in the disputed contract.

Stuart Southall of KANGS comments on the nuances of an Order for Specific Performance which need to be understood both by those seeking and those required to comply with such an Order.

Seeking an Order for Specific Performance

The granting of an Order for Specific Performance is a comparatively rare event requiring a court to be satisfied upon a number of criteria.

Generally, the grant of an Order for the payment of damages is the remedy available to any party suffering loss following a breach of contract.

However, payment of damages may not be an appropriate solution to resolve the problems encountered by the party prejudiced by the contractual breach.

In such circumstances, the party seeking an Order for Specific Performance, must show, inter alia:

  • no other remedy is adequate,
  • no other party is able to perform the contract,
  • the act required is still feasible,
  • no undue delay has occurred in seeking the Order,
  • no part of the defaulting party’s inability to perform arises from the applicant’s conduct,
  • the extent of the hardship (if any) that the defaulting party would suffer in the event that an Order was granted,
  • no contract was in place or it had expired.

Additionally, if an Order is sought on the basis that goods and services at the centre of the dispute cannot be purchased from or supplied by another provider, the Court may grant an Order upon the basis that there is no alternative manner of rectification for the party seeking the Order.

Despite having sought an Order for Specific Performance, a Claimant may subsequently elect to revert to the more standard remedy and claim damages instead (Johnson and Hooper v Oates [2013]).

Case Law

The reluctance of the courts to grant an Order for Specific Performance is evidenced by the following cases where there was a breakdown in relations between the individuals concerned:

Johnson v Shrewsbury [1853]- where it was stated that Specific Performance would require one individual ‘to perform their duties against their will’.

Vortex Data Science Ltd v Powergen Retail Ltd [2006] - where the court found it improper to grant a ‘relief which will have the effect of compelling the parties to work together’.

Possible Defences

It follows from the above that the court may refuse to make an Order for Specific Performance when the party against whom it is sought is able to show:

  • the existence of another remedy,
  • another party is available to perform the contract,
  • the act required is no longer feasible,
  • undue delay has occurred in seeking the Order,
  • the inability to complete the contract arises from the applicant’s conduct,
  • unreasonable hardship would result in the event that an Order was granted,
  • no contract was in place or it had expired.

How Can We Assist?

When faced with the consequences of a breach of contract, or anticipated breach, it is essential that the correct procedure is pursued to seek the appropriate remedy whether by obtaining court assistance for the fulfilment of the contract or recovery by way of damages of any financial losses arising.

The Team at KANGS is extremely experienced in assisting clients facing contractual issues of any nature, and will provide guidance as to the appropriate course of action to pursue whether by Alternative Dispute Resolution Procedure or the commencement of ‘full blown’ civil court proceedings.

The Team at KANGS can guide and advice on all pertinent issues and will be delighted to assist.

Should you require our assistance please do not hesitate to contact us by:

telephone on 0333 370 4333 or 
email at info@kangssolicitors.co.uk.

The following members of the KANGS Team can provide guidance and advice on all pertinent issues and will be delighted to assist.

Tim Thompson

Tim Thompson
Partner

Email Phone
Nazaqat Maqsoom

Naz Maqsoom
Associate

Email Phone
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