Specific Performance
What is Specific Performance?
Specific performance is a court order which obliges the defendant to perform their outstanding obligations under the law. For example, any contractual duties the defendant has yet to perform or an equitable duty which has arisen.
When Will Specific Performance Be Granted?
Specific performance will only be granted if damages are an inadequate method of compensating the claimant: Cohen v Roche [1927] 1 KB 169. Damages are only considered inadequate in this context if one of two conditions is met:
1. The goods are unique, meaning that there is no market for them in which the claimant could acquire substitute performance: Co-op insurance v Argyll Stores [1997] 2 WLR 898.
For example, pieces of art or land are unique: Falcke v Gray (1859) 62 Eng Rep 250. There is a market if the goods are available elsewhere, even if on worse terms or at a higher price.
2. The harm to the claimant is intrinsically impossible to calculate in economic terms or their interest in performance is incapable of economic valuation: Beswick v Beswick [1968] AC 58.
Damages are not considered inadequate merely because they are difficult (but not impossible) to calculate or because the seller does not have the funds to pay them: Societe des Industries Metallurgiques SA v The Bronx Engineering Co Ltd [1975] 1 Lloyd’s Rep 465.
When Will Specific Performance be Refused?
As an equitable remedy, specific performance is discretionary: the court can refuse to grant it even if damages are inadequate. The following are common circumstances in which specific performance will not be granted:
Personal Labour
Specific performance cannot be ordered where this would involve ordering personal labour on the part of the defendant (this being akin to slavery): Cohen v Roche [1927] 1 KB 169.
Undue Hardship
Specific performance may not be granted if the order would cause substantial and undue hardship to the defendant: Denne v Light (1857) 8 DM & G 774. That hardship does not need to be the fault of the claimant: Patel v Ali [1984] 1 All ER 978.
Long-Term Supervision
The courts will generally not grant specific performance if enforcing the performance is impossible or would need ongoing or long-term supervision by the court: Co-op insurance v Argyll Stores [1997] 2 WLR 898.
Unjustified Delay
The courts may refuse specific performance where they consider that there has been unjustified delay in bringing the claim: Milward v Earl Thanet (1801) 5 Ves 720.
Inequitable Conduct
Since specific performance is an equitable remedy, the usual equitable bars apply. The courts may refuse the remedy if the claimant acts inequitably or does not intend to perform their end of the bargain: Chappell v Times Newspapers [1975] 1 WLR 482.
Mutuality
Specific performance will not be granted if the obligation it would enforce is conditional on the claimant performing some obligation which is not itself specifically enforceable and which the claimant has yet to perform: Price v Strange [1977] 3 All ER 371.
