was granted. The main difference between the two cases is that in Ryan, a caretaker had been employed but he had a number of other jobs, to the extent that he was rarely available to carry out his role as a caretaker, whereas, in Posner, the landlord had made no appointment at all. In these circumstances it is easy to see what had to be done to ensure compliance in Posner. But the same could not be said of Ryan, short of attaching a ball and chain to the caretaker’s ankle! In Tito v Waddell (No 2), the defendants were given a right to abstract phosphates from Ocean Island in the Western Pacific on condition that they would replant the island for the benefit of its inhabitants when the abstraction process was complete. They failed to comply with this obligation. However, some of the islanders but not others were joined as parties to the proceedings. On the question whether specific performance was an appropriate remedy, Megarry VC was of the opinion that it was not. One of the reasons given was that the remedy was unsuitable due to the complexity of the obligation to be enforced: Tito v Waddell (No 2) [1977] 2 WLR 496, p 694

doi:10.4324/9781843141518-236

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was granted. The main difference between the two cases is that in Ryan, a caretaker had been employed but he had a number of other jobs, to the extent that he was rarely available to carry out his role as a caretaker, whereas, in Posner, the landlord had made no appointment at all. In these circumstances it is easy to see what had to be done to ensure compliance in Posner. But the same could not be said of Ryan, short of attaching a ball and chain to the caretaker’s ankle! In Tito v Waddell (No 2), the defendants were given a right to abstract phosphates from Ocean Island in the Western Pacific on condition that they would replant the island for the benefit of its inhabitants when the abstraction process was complete. They failed to comply with this obligation. However, some of the islanders but not others were joined as parties to the proceedings. On the question whether specific performance was an appropriate remedy, Megarry VC was of the opinion that it was not. One of the reasons given was that the remedy was unsuitable due to the complexity of the obligation to be enforced: Tito v Waddell (No 2) [1977] 2 WLR 496, p 694

ABSTRACT

I now come to the remedy of specific performance. Is this a case in which an order for specific performance can and should be made? This raised a number of issues:

(a) Unsuitability – I will take first a contention by Mr MacCrindle that the obligation to replant is a type of obligation that is unsuitable for a decree of specific performance. He put this on the ground that the work was too complicated and experimental, and that while it was being carried out over the long period that it would take it would repeatedly raise questions of whether the complex operations were being properly carried out. On this, he cited the well known case of Wolverhampton Corpn v Emmons. Counsel for the plaintiffs met this in two ways. First, he put forward the draft order that I have already set out, thereby giving a considerable degree of greater certainty to what the court was being asked to order. Secondly, he cited a line of cases, beginning with Pembroke v Thorpe and running down to Jeune v Queen’s Cross Properties Ltd, as tending to show that such a contract was specifically enforceable.