success of the centre, since such stores often persuade smaller shops that customer ‘volume’ makes it worthwhile to take on a lease. The lease was for 35 years. However, after 15 years, Argyll decided that the supermarket was insufficiently profitable, speedily stripped it out and left. This was, obviously, a serious breach of contract, but the question remained as to how it should be remedied. The Court of Appeal, by a majority, held that an order of specific performance should be granted, primarily because the assessment of damages would be largely a matter of guesswork (in particular as to the projected commercial impact of Argyll’s withdrawal). However, the House of Lords unanimously reversed this – the most significant consideration being that to award specific performance would require constant supervision by the courts: Co-operative Insurance v Argyll Stores Ltd [1998] AC 1, p 9

doi:10.4324/9781843141518-240

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success of the centre, since such stores often persuade smaller shops that customer ‘volume’ makes it worthwhile to take on a lease. The lease was for 35 years. However, after 15 years, Argyll decided that the supermarket was insufficiently profitable, speedily stripped it out and left. This was, obviously, a serious breach of contract, but the question remained as to how it should be remedied. The Court of Appeal, by a majority, held that an order of specific performance should be granted, primarily because the assessment of damages would be largely a matter of guesswork (in particular as to the projected commercial impact of Argyll’s withdrawal). However, the House of Lords unanimously reversed this – the most significant consideration being that to award specific performance would require constant supervision by the courts: Co-operative Insurance v Argyll Stores Ltd [1998] AC 1, p 9

ABSTRACT

Specific performance is traditionally regarded in English law as an exceptional remedy, as opposed to the common law damages to which a successful plaintiff is entitled as of right. There may have been some element of later rationalisation of an untidier history, but, by the 19th century, it was orthodox doctrine that the power to decree specific performance was part of the discretionary jurisdiction of the Court of Chancery to do justice in cases in which the remedies available at common law were inadequate. This is the basis of the general principle that specific performance will not be ordered when damages are an adequate remedy. By contrast, in countries with legal systems based on civil law, such as France, Germany and Scotland, the plaintiff is prima facie entitled to specific performance. The cases in which he is confined to a claim for damages are regarded as the exceptions. In practice, however, there is less difference between common law and civilian systems than these general statements might lead one to suppose. The principles upon which English judges exercise the discretion to grant specific performance are reasonably well settled and depend upon a number of considerations, mostly of a practical nature, which are of very general application. I have made no investigation of civilian systems, but a priori I would expect that judges take much the same matters into account in deciding whether specific performance would be inappropriate in a particular case.