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Sender:
David Hoffman
Date:
Thu, 16 Nov 2006 16:34:24
Re:
U2

 

Responding to Andrew B's comment, and supporting Andrew T:

I agree that the analogy with an injunction is probably better than specific performance, because specific performance is a somewhat unusual remedy, whereas return of goods is very common, especially in defaulting hire purchase cases (so much so that one can find block lists of 'ROG' in county courts taken at a brisk rate, with dozens in a morning).

In a run of the mill case, a court is unlikely to refuse delivery up if requested, so long as claimant has shown that he retains title, and that the item is capable of being delivered up with no great difficulty, and so long as that is what claimant requests, ie damages are not for some reason a preferential remedy (e.g. deterioration of the object).

I suppose from an analytical point of view this may amount to saying that in a typical case a court will rather assume that the fact that the item is sought back is itself a good reason for considering that damages are not an adequate remedy. In particular, the point which is likely to be a strong one at the county court level is that enforcement is clearly easier when the thing itself can be returned, as opposed to having to pursue a defendant who may or may not have any money (e.g. a company or business in difficulties). Many county court defendants do not have any money, so a remedy in damages, like pursuing costs, is something of a pyrrhic victory.

 

Regards

David

 

Message text written by Andrew Tettenborn

The jurisdiction to order return is clearly discretionary. Whether there's much future in drawing a parallel with specific performance I'm more doubtful, however. My own suspicion is that the owner faces less of a hurdle. A couple of points come to mind:

1. At times courts seem to look to whether the plaintiff would suffer hardship if he didn't get his thing back, which seems more generous. So Perry got their steel from British Rail in Howard E Perry [1980] 2 All ER 579: whether they'd have got specific performance to tell BR to carry it or a seller to deliver it looks more doubtful. Again the owner of a batch of Rover cars got specific delivery simply because they weren't making them any more (see Pendragon plc v Walon Ltd [2005] EWHC 1082 (QB)): I doubt if he's have got specific performance against a seller. Conversely in SM v Bronx [1975] 1 Lloyd’s Rep 465 the buyer of a machine tool that took months to make to order didn't get specific performance: but it seems pretty inconceivable that they wouldn't have got specific restitution if it had been their machine wrongfully in the defendants' hands.

2. In the nature of things specific restitution tends to be less intrusive. We don't like telling a defendant to actually do something or go to prison: but specific restitution merely involves telling the defendant to acquiesce in the plaintiff's taking his thing (note that generally plaintiff bears collection costs and trouble).

Perhaps the better parallel is with the injunction, which is easier to get than specific performance (and, at least in practice, available as of course in many situations, such as breach of restrictive covenants or noncompete clauses).


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" These messages are all © their authors. Nothing in them constitutes legal advice, to anyone, on any topic, least of all Restitution. Be warned that very few propositions in Restitution command universal agreement, and certainly not this one. Have a nice day! "


     
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