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  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  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  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 ( 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.
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