Small Claims

Small Claims

A court may decide to grant an order of specific performance if it is persuaded that an award of damages only would be unjust. However, this a necessary but not a sufficient condition. This paper considers case law and conflict minimisation.

The question in Evans Marshall & Co. Ltd v Bertola SA [1973] 1 WLR 349 (379H) was, ‘Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?’ General principles are outlined by Pearce and Barr (2020 533–46). Courts order specific performance to avoid ‘encouraging’ the breaking of a contract. In Decro-Wall International SA v Practitioners in Marketing [1971] 1 WLR 361, the defendant had worked to create a market for the claimant’s goods. The claimant apparently found a distributor it preferred and argued that the defendant’s late payments were a repudiation of their agreement. The court stated: ‘Damages in such a case are very difficult to prove and I do not believe that they would by themselves be an adequate remedy’ (371–).

However, Decro-Wall may have been decided differently. Difficulty in valuating damages is not a reason to award specific performance (Zinc Cobham 1 Ltd v Adda Hotels [2018] EWHC 1025 (Ch)), and courts avoid ‘creating oppression caused by the defendant having to do things under threat of proceedings for contempt’ (Co-operative Insurance Society Ltd v Argyll Stores ([1997] UKHL 17).

Specific performance is considered an ‘exceptional’ remedy and is not ordered where common law damages are adequate. Indeed, in Co-operative, it was argued that it may be refused even when damages are not an adequate remedy. The quasi-criminal enforcement mechanism, punishment for contempt, moderates the court’s discretion. ‘Specific’ performance entails an assessable result.

Tuesday, 17 September 2019 18:03

Essential Elements of the Tort of Negligence

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The field of negligence is delineated by considerations of whether it is appropriate, or fair, for a duty of care to be imposed. Modern courts have worked to define and elaborate this duty. In so doing, they have sought to define and describe the essential aspects of the duty of care. This article examines the features of the tort of negligence, and the tests and rules that have developed and refined the tort, by applying them to a hypothetical scenario involving an automobile accident.

Tuesday, 10 September 2019 15:09

Damage Awards Available in Small Claims Court

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Courts have identified six types of damages that a person (or corporation) can claim as compensation for loss or injury. Which types might Small Claims actually award a successful plaintiff? Here is a break down.

Tuesday, 13 August 2019 07:59

Elements of a Plaintiff's Claim

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Rather than detailing a claim in a Form 7A, consider appending a schedule. The judge will have the substance of the claim in a clear, easy-to-read format. Here is a PDF of a sample schedule for a plaintiff's claim. Its elements are described below.

Friday, 16 August 2019 07:56

Tips on Drafting a Defence

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Have you been served with a Plaintiff's Claim in Chatham? If so, do not ignore it. A successful plaintiff could empty your bank account, garnish your wages, even have your car and house seized and sold.