29. Remedies beyond compensatory damages

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving them of their profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform their contract. Injunctions can either prevent a person from breaching their contract (prohibitory injunctions) or force a person to comply with their contract (mandatory injunctions).

What is new after Liu: unsettled questions surrounding SEC disgorgement

Purpose To analyze the impact of the U.S. Supreme Court’s decision in Liu v. SEC, where the Court confronted the issue of whether the SEC can obtain disgorgement in federal district court proceedings. Design/methodology/approach This paper provides an overview of the authors’ prior work analyzing courts’ treatment of SEC disgorgement and a summary of the background and opinion in Liu v. SEC. This article then focuses on the practical implications of Liu on SEC disgorgement by considering questions left open by the decision. Findings The Court in Liu held that the SEC is authorized to seek disgorgement as “equitable relief” as long as it “does not exceed a wrongdoer’s net profits and is awarded for victims.” But the Court left many unanswered questions, such as whether disgorged funds must always be returned to investors for disgorgement to be a permissible equitable remedy, whether the SEC can obtain joint-and-several disgorgement liability from unrelated co-defendants, what “legitimate expenses” should be deducted in disgorgement calculations, and to what extent the SEC can seek disgorgement in cases when victims are difficult to identify. Originality/value Original, practical guidance from experienced lawyers in financial services regulatory and enforcement practices, many of whom have previously worked in the SEC’s Division of Enforcement.

20. Limitation of Actions

At common law, lapse of time does not affect contractual rights. But it is the policy of the law to discourage stale claims because, after a long period, a defendant may not have the evidence to rebut such claims and should be in a position to know that after a given time an incident which might have led to a claim is finally closed. Accordingly, in the Limitation Act 1980, the Legislature has laid down certain periods of limitation after the expiry of which no action can be maintained. Equity has developed a doctrine of laches, under which a claimant who has not shown reasonable diligence in prosecuting the claim may be barred from equitable relief.

Trusts & Equity

This book provides a detailed and conceptual analysis of trusts and equity; concentrating on those areas of the subject that are most relevant in the contemporary arena, such as the commercial context. It utilizes expertise in teaching, writing, and researching to enliven the text with helpful analogies and memorable references to extra-legal sources such as history, literature, and film. In this way, the book also stimulates students to engage critically with concepts. This new edition is not merely updated but fully revised to include a new layout and a number of features designed to make the text even more accessible to student readers, one of which is a new context feature at the start of each chapter. This new revised edition also includes the latest legal developments, including decisions of the Supreme Court on dishonesty in relation to the civil liability of strangers to trusts (Ivey v. Genting Casinos UK Ltd (t/a Crockfords Club (2017)) and on equitable relief against forfeiture (The Manchester Ship Canal Company Ltd v. Vauxhall Motors Ltd (2019)). A great many new cases in the Court of Appeal and the High Court have been added, including twenty or more in 2019 alone. Other recent devlepments including law commission reports and academic commentary are also included. Further reading and discussion of anticipated reforms has been updated throughout in light of the latest legal developments.

Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

4 Limitation Periods

This chapter discusses the limitation periods applicable to claims for damages, judicial review, and appeals against infringement decisions. It first considers the relevant limitation rules barring competition law infringement claims for loss and damage, with emphasis on rules relating to private actions for claims in the High Court and in the Competition Appeal Tribunal (CAT) based on infringements of competition law occurring before 9 March 2017. Limitation rules applicable to loss and damage resulting from infringements of competition law occurring on or after 9 March 2017 are also examined, along with follow-on proceedings commenced before and after 1 October 2015, and claims based on infringements after 8 March 2017. The chapter concludes with an analysis of the time limit for making appeals and judicial review in the CAT, applying for judicial review in the High Court, commencing arbitral proceedings, and seeking equitable relief.

Beyond disgorgement: the impact of Kokesh on the SEC’s pursuit of equitable remedies

Purpose This paper aims to explain the US Supreme Court’s ruling in Kokesh v. SEC, which limited the U.S. Securities and Exchange Commission’s (SEC) ability to seek the remedy of disgorgement and to examine how lower courts have applied the ruling to other types of equitable relief that that the SEC commonly pursues. Design/methodology/approach This study explains why the Supreme Court in Kokesh ruled that disgorgement is a “penalty” and that the five-year limitations period therefore was applicable to actions seeking disgorgement; discusses a footnote in Kokesh that left open the question of whether the SEC has the power to pursue disgorgement at all; and reviews four recent cases that grapple with the application of Kokesh to injunctions and lifetime bars. Findings Lower courts and the SEC have not settled on how Kokesh might impact equitable remedies commonly pursued by the SEC, but recent cases indicate that the effect of Kokesh may be broader than its narrow holding suggests. Originality/value Practical guidance from experienced white collar and regulatory defense lawyers that consolidates several recent developments in one piece.