Chapter 17 Guidance on questions in the book

Question

Tom entered into a written contract with Una to sell her a building plot which is presently part of the garden of Tom's house. What remedies are available in each of the following cases?

(a) The contract contains a promise by Una to build a stone wall six feet high along the new boundary. When she learns after completion of the purchase that the cost of such a wall will be £10,000, Una refuses to build it, arguing that it will make little, if any, difference to the value of either property.

(b) The contract contains a promise by Una that she will not erect any fence or wall along the new boundary. When Tom returns from holiday, he finds that Una has nearly completed building a stone wall which will cost her £10,000, though it will make little, if any, difference to the value of either property.

Answer guidance

You are asked to advise what remedies are available in each case, which means advising Tom on the availability of specific remedies and/or damages (remember damages are available as of right for breach of contract, but you will need to consider the measure of damages).

(a) First, consider whether Tom has any chance of persuading a court to order specific performance of Una’s promise, compelling her to build the wall, remembering that it is a discretionary remedy, though subject to settled criteria. This is unlikely, as the court will probably regard damages as an adequate remedy, in which case you need to advise Tom whether he will be able to recover damages on the cost of cure measure to enable him to build an equivalent wall on his side of the boundary instead (recap chapter 16 and cases such as Radford v De Froberville).

(b) Tom would ideally like the court to grant a mandatory injunction to compel Una to take down the wall and honour the restrictive covenant, but this is only granted in exceptional circumstances. So Tom will need to be satisfied with damages and will probably be able to recover a figure representing a hypothetical amount he would have charged Una to release the covenant, had she asked permission (see chapter 18 for the availability of ‘negotiating damages’ and the One Step case).