BIRMINGHAM LAW SCHOOL
Birmingham Law School
Contract Law 29400/26314/29397
2025–26
REMEDIES FOR BREACH OF CONTRACT: Specific Performance
and Injunction
Dr Katharina Moser ([Link]@[Link])
Key reading for this section:
McKendrick, Ewan: Contract Law, 17th ed., Hart 2025, pp.
564-571
Burrows, Andrew: A Casebook on Contract, 7 th ed., Hart
2020, pp. 519-545
Further reading:
A. Schwartz, ‘The Case for Specific Performance’ (1979) 89 Yale
Law Journal 271
S.A. Smith, ‘Performance, Punishment and the Nature of
Contractual Obligation’ (1997) 60 MLR 360
(a) Specific performance
A decree of specific performance is an order of the court requiring a party
to carry out their obligations under the contract. Failure to carry out the
court’s order is a contempt of court and is punishable with the penalties
for civil contempt (in extreme cases, imprisonment).
Specific performance is considered an exceptional remedy. The basic
principle concerning the grant of decrees of specific performance is that
they will not be granted where damages would be an adequate remedy.
Sky Petroleum Ltd. v VIP Petroleum Ltd. [1974] 1 All E.R. 954
Beswick v Beswick [1968] A.C. 58
In granting an order of specific performance to the claimant in Beswick v
Beswick, it is clear that the House of Lords envisaged a greater role for
specific performance, based upon the appropriateness of the remedy in
the circumstances of the case. Lord Reid awarded specific performance to
achieve a ‘just result’ and Lord Pearce granted the order because it was
‘the more appropriate remedy’.
The extent to which this decision has changed the law was discussed
controversially among academics. One commentator has gone so far as to
cite Beswick for the proposition that there is now “a right to specific
performance of all contracts where there is no adequate reason for the
courts to refuse it” (FH Lawson, Remedies of English Contract Law (2 nd
ed., 1980; this is just for reference – you do not need to read this source).
Other commentators, while recognising the possibilities inherent in
Beswick, have been more hesitant, and rightly so. The generous approach
was brought to a halt by the House of Lords decision in
Co-operative Insurance Society Ltd. v Argyll Stores (Holdings) Ltd.
[1998] A.C. 1
(b)Prohibitory injunction
The prohibitory injunction is the appropriate remedy for restraining the
breach of a negative contractual obligation. Thus, it is closely linked to
specific performance which enforces a positive contractual obligation.
However, in contrast to specific performance, and probably because the
law considers it less of an infringement of individual liberty to be ordered
not to do something than to be ordered to do something, a prohibitory
injunction is much easier to obtain than specific performance. One can
rightly regard the prohibitory injunction as the primary remedy as against
compensatory damages, see Burrows, p. 534.
Doherty v Allman (1878) 3 All Cas. 709
Araci v Fallon [2011] E.W.C.A. Civ 668
An injunction will not be granted where its effect would be to directly or
indirectly compel the defendant to perform acts which they would not
have been required to do by order of specific performance. BUT see the
recent case of:
Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers [2024]
UKSC 28
(c) Critical discussion: Should the remedy of specific performance be
more readily available?
A. Schwartz, ‘The Case for Specific Performance’ (1979) 89 Yale
Law Journal 271
S.A. Smith, ‘Performance, Punishment and the Nature of
Contractual Obligation’ (1997) 60 MLR 360