(c) Charlotte and Stephen Halliday; Supplied by The Public Catalogue Foundation

Interlocutory discourse between those that apply for, or request, obtainment of services, and the party empowered to grant them, can on the surface, appear to suggest a verbal, or somewhat provisional agreement to contract to one another.

Unfortunately, it would seem that under common law, this would be a false assumption, as there is still yet more to require a binding agreement; so, when an applicant for a university degree course becomes victim to an administrative error, it is left for the courts to clarify the mechanics of these arrangements in a light that might well surprise. 

After choosing to study for a recognised qualification in a competitive field, the appellant used a central admissions system to act on his behalf when approaching a number of suitable universities.

After facing a volume of rejections, he received an unconditional offer from a provider of notable standing; however, there were certain conditions attached to the offer, and one of those, was the preclusion from seeking admission through the clearing system, as well as accepting any other offers from universities at a later date.

The appellant duly acquiesced to these conditions and returned his acceptance form, both in good time and using the methods prescribed by the university.

During the period between his acceptance and subsequent discovery that his application had been denied due to oversubscription, the appellant had left his position of employment, turned down a second interview for another post, surrendered his tenancy with his landlord and made plans to relocate in order to support his education.

In fact, it was due to a phone call to the university that he learned of the error; at which point, he was informed that he could try to apply for an alternative course through clearing (which by this time had run its course). 

When seeking legal remedy under (i) specific performance (ii) mandatory injunction and (iii) breach of contract, the court found that although the offer had been sent and the acceptance received within the guidelines, there was no guarantee of contract until the enrolment process and payment of fees had occurred.

As this fact prevented the existence of a contract, any claim for specific performance was quashed, along with that of a breach or mandatory injunction; yet, upon appeal, the details of the arrangement were given a thorough examination and some interesting facts emerged.

While it was central admission policy to issue application guidelines to the public, there were similar guidelines issued to the receiving universities that contained within them, important information that upon consideration, warranted inclusion to the former documentation as they outlined the responsibilities of the providers where such errors were found.

In addition to this, the failure of the admissions team to properly address the appellants application had denied him any opportunity to enter clearing; an act held by the Court as consideration prior to contract.

Unfortunately, despite the good intention and sufferance of the applicant (under the assumption that a legal contract had been constructed), the court ruled that as with the first judgment, there had been no evidence to suggest a contract existed, because there had been no formal enrolment and agreed payment of fees; a caveat which had been further construed from the terms contained within the central admissions guide.

“Whether or not….an agreement is legally enforceable depends primarily upon the terms of the particular agreement and secondly upon the ‘matrix’ which is provided by the scheme itself.”


Administrative confusion and errors in judgment, were the foundations of a refused application for asylum that at first glance appeared false, until professional evidence revealed otherwise.

It was only after a collection of ministerial and administrative mishaps, that the refugee brought civil action against the Home Secretary and the Crown.

In autumn of 1990, an African citizen arrived in the United Kingdom, claiming asylum on grounds that he had been a victim of torture while working as a school teacher in Zaire.

His story, while sounding hard to imagine, was later corroborated by the attending doctor at the Medical Foundation for the Care of Victims of Torture, whose report stated:

“I found nothing in his history or its presentation to suggest that it was in any way unreliable. His description of prison conditions has been confirmed innumerable times by other people who have experienced them. The scars he bears are entirely compatible with the causes he ascribes to them. He is suffering a degree of deafness and spinal trouble quite likely to have arisen from his mistreatment. Psychologically he describes symptoms very likely to arise from the experiences he described. He shows some evidence of depression and his continued detention can only aggravate these symptoms and he could easily become a serious suicide risk.”

Prior to this disclosure, the Home Office had rejected his previous two submissions and plans were set in motion to return him back to Zaire, whereupon he had applied for judicial review; after which time, the deportation arrangements were cancelled in lieu of his appearance before the court.

Two months later, the review application was refused; at which point, the appellant applied to the Court of Appeal. 

Unfortunately, his solicitors failed to lodge the application, therefore it went unregistered, and while the doctor’s report provided sufficient weight to support his claim, it was not received by the Home Office until a day before his planned removal from the country.

By luck rather than judgment, the Court of Appeal had already made time to hear the case on the day of deportation, but dismissed the application while unaware of the report, or that the applicant was changing solicitors, on grounds that his case had been misrepresented, and that a new application for judicial review was being lodged.

Having been heard before Garland J literally thirty minutes before the assigned plane was due to depart, it was decided that there needed to be further provisions in place to evaluate the matter fairly, so proceedings were adjourned in favour of another session the following day.

This led to the cancelling of the flight by the appellant’s solicitor who had telephoned the Home Office accordingly. During this period, Garland J interpreted that the Home Office had expressed permission for the appellant to remain in the country and explained:

 “[T]he application for leave to move for judicial review be adjourned on the undertaking by counsel for the Home Office . . . that the applicant would not be removed from the United Kingdom to Zaire.”

Garland J

For one reason or another, the information was never relayed to those accompanying the appellant and he was deported to Paris en route to his home country.

Around the time the appellant was leaving there had been a meeting between the Parliamentary Under Secretary of State to the Home Office, Home Office officials and the appellant’s representing solicitor, yet no intervening action had been taken with regard to the appellant’s departure.

This culminated in the appellant’s solicitor meeting with Garland J in the midnight hours, whereupon the judge issued a written order requesting the appellant’s immediate return and interim protection.

Notice of this order then reached numerous state departments and their representatives, including the Home Secretary Kenneth Baker who while acting upon legal advice, declared the order beyond the jurisdiction of the judge (ultra vires), and that an appeal would be lodged against the order on grounds that there was insufficient cause for the appellant to receive asylum and return to the United Kingdom.

It was there that the judge held the Home Secretary in contempt of court and declared his actions (or inactions) a breach of statutory duty.

Legal precedence of injunctions or orders served against either the Crown or their representatives dates back to Feather v The Queen, where Cockburn CJ remarked:

“As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.”


This continued until the Crown Proceedings Act 1947, whereupon section 1 enabled action against the Crown by petition of right, while s.2 allowed tortious claims upon those identifiable under the Crown’s protection.

Section 17 of Part II of the 1947 Act further provided a list of those Ministers and their departments to allow civil claims against the department or the position held by those subject to the action.

Section 21(a) of the 1947 Act also explained that where an injunction or specific performance was sought, the courts would instead allow declaratory rights for those claiming, as to do otherwise would contradict the principle that the Crown can do no wrong.

Under the powers of section 31 of the Supreme Court Act 1981 RSC Ord.53 allowed for judicial review, whereupon section 37(1) of the 1981 Act provided that:

“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”

Section 37(1) Supreme Court Act 1981

This translated that irrespective of the violations argued by the Home Secretary, the intentions of Ord.53 were such that allowed the courts to grant interim relief where appropriate, as further expressed in The Supreme Court Practice 1993, which read:

“Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review.”

Having appealed against the charge of contempt, the Court of Appeal held that the Crown, a government department or a Minister were exempt from contempt; whereupon the case was presented to the House of Lords.

Here it was declared that Garland J had been acting well within his judicial powers throughout, and that in consideration of the limited knowledge held by the Home Secretary, it was only reasonable that the charge of contempt was applicable to the position held, rather than that of his own personal acts; at which point, the Home Office appeal was dismissed subject to amendments, while the House reminded the parties that:

“[W]hile a citizen is entitled to obtain injunctive relief (including interim relief) against the Crown or an officer of the Crown to protect his interests under Community law he cannot do so in respect of his other interests which may be just as important.”


The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights; and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under article 3 of the European Convention on Human Rights (ECHR) (Prohibition of torture), which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so, citing that he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance, the Court of Session refused to issue orders against them, on grounds that section 21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

Crown Proceedings Act 1947

However, the court denied such an order, while the Extra Division followed suit for the same reasons, before the appellant was again denied recourse before the House of Lords; until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate; and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under section 38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus, the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity; whereupon, the House of Lords referred to Porter v Magill; in which, they had held that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”


And so, after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal, on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP, who was at the time, the Secretary of State for Scotland; and that Lord Hardie had merely been representative of those actions within his professional capacity, before clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”


Specific performance and cessation of contract on grounds of mistake, are both viable arguments for either continuation of contractual obligations, or the cessation of a transaction for reasons non-detrimental to both contractees; however, both approaches rely upon the honesty and accountability of at least one party, should the courts take a view to upholding either of them.

In this instance, a Gujarati widower entered into an agreement to convey a determinate plot of land for an agreed sum, yet immediately after signing the disposition she tore up the document and refused to continue with the transaction, on grounds that she had been misled as to the size of the plot, and the identity of the individual to whom the purchaser was planning to sell it to.

During initial litigation in the Supreme Court of Kenya, her argument for the fraudulent misrepresentation was based upon her limited grasp of the English language; and so, she had elected a representative to be present with her at the time of signing.

However, it was also argued that no mention had been given as to the size of the plot; which in the first instance, was alleged to be half an acre and not the two acres contained within the conveyance; a fact discovered only after the signing.

When cross-examined, the respondent was proven to have falsified the statement; and so, her witness was accused of perjury, whereas the appellant contested that during preliminary talks, the proposed plot was described as two acres and not the half-acre suggested.

The contract itself was signed in the presence of a third party; however, the respondent also relied upon the contention that at no point during an earlier meeting did anybody translate the contents of the contract, despite the appellant claiming that not only did he explain it, but that the respondent’s cousin had also clarified its contents to her.

It was likewise argued by the appellant that the respondent tore up the contract, not because of the plot variation, but upon the knowledge that the land was to be resold to an individual she disliked; however, this was also proven to be untrue after lengthy cross-examination and questioning of oral evidence.

Upon summation, the trial judge awarded in favour of the appellant, despite reservations around the integrity of both parties; and so, when presented to the Court of Appeal of East Africa, the Court took issue with the reliability of the appellant’s statements and proceeded to reexamine the facts, before reaching the same conclusion as the lower court.

Taken finally to the House of Lords, it was noted that vol. 2 of ‘Williams on Vendor and Purchaser’ clearly illustrated that:

“[A]s a rule, either party to a contract to sell land is entitled to sue in equity for specific performance of the agreement. This right is, in general, founded on a breach of the contract, but not in the same manner as the right to sue at law. The court has no jurisdiction to award damages at law except in case of a breach of the contract; while the equitable jurisdiction to order an agreement to be specifically performed is not limited to the cases in which at law damages could be recoverable.”

Which translated that when contracting parties hold a good account of themselves throughout their dealings, equity would provide sufficient weight as to instigate specific performance.

Yet, on this occasion neither party had been anywhere near as truthful as a court would rightfully expect; and so, on this principle it was impossible to uphold the appeal, nor enforce the equitable rights of the appellant, or those forwarded by the respondent.

Hence, the appeal was dismissed, while the House reminded the parties that:

“In equity all that is required is to show circumstances which will justify the intervention by a court of equity.”


Under the law of contract there are times when two parties can no longer honour their agreement, and at which point one of them is left wanting, while in some instances the award of monetary damages is enough to provide remedy; however, there are also those where the loss is irreplaceable.

On those occasions, the court can legally impose a duty on those no longer willing (or seemingly able) to perform the task they originally contracted to undertake. While in certain cases the source of non-performance can also stem from frustration, the criteria here is one of general breakdown of communication or even unresolvable conflict that while perhaps entirely warranted on the part of the negator, leaves the claimant with no other option than to sue.

Once agreed upon, an order for specific performance will comprise two elements (i) declaration of the order and (ii) provision of consequential directions to that effect.

It is also important to note that where a contractual breach is only anticipated the court can still require specific performance or provide injunctive measures, as was outlined by Lord Tucker in Hasham v Zenab:

“In equity all that is required is to show circumstances which will justify the intervention by a court of equity. The purchaser has an equitable interest in the land and could get an injunction to prevent the vendor disposing of the property.”

Hasham v Zenab

In this instance, the potential vendor immediately tore up a signed contract for sale of land after learning that the acreage was greater in the conveyance than as she had orally agreed.

The language barrier between the two parties thus prevented clear understanding of what was at stake; and so left with a collapsed purchase the buyer sought specific performance prior to the completion date, upon which the court pondered its feasibility before dismissing the claim upon grounds of falsified evidence on both sides.

A positive example of specific performance can however be found in Rosesilver v Paton where a purchaser entered into a contract to acquire residential property; after which, the vendor argued that the terms of the agreement relied on reimbursement of the part-purchase payments upon winning their two pending litigation cases, therefore the intention to sell was implied at the outset.

Having examined the inconsistency of the vendor’s argument, the judge dismissed additional claims of fiduciary breach and undue influence on a lack of cohesive evidence before ruling that the sale must now be completed.

When reaching summary judgement Mann J concluded:

“I do not consider that Mr Paton has advanced a sufficiently clear and plausible case for saying that there was any form of binding (in any sense) arrangement, contemporaneously with the contract and its variation, which would restrict or restrain the enforcement of the contract.”

Rosesilver v Paton

There are of course a number of factors that can hinder the ability to undertake a contract of engagement, and these can range from disability and illness, personal conflict, mistrust based upon recent behaviour and costly supervision to enforce the performance.

Likewise, a failure to seek remedy for a protracted period can also work against a claimant as the negator could claim estoppel under the doctrine of laches.

Ultimately, the choice to pursue specific performance will always run with an attached risk of further complications, as the inherent trust between contracting parties will have been irreversibly eroded once litigation commences, therefore financial damages should never be ruled out unless all other options have been exhausted.


Implication by way of contract, is argued in a case involving the conflict of interests between two tenants and a perhaps disorganised and rushed grant of occupancy by the landlord.

In a time immediately before the Law of Property Act 1925, a landowner sought to let out a part of his estate for a determined period, while under the terms of the lease, there was at the time, a gravelled road that passed by the tenant’s rented property named ‘The Gardens’, which led to the door of the main estate property named ‘The Hall’.

At the time the tenant began his residence, there was also an unfinished bridleway that allowed for access to the rear of the Gardens, albeit given no mention within the contract, nor any reliable evidence that use of the drive had been orally agreed between the two parties.

During this period, and shortly after taking occupancy of the Gardens, the Hall was leased to another occupier, with no issues arising between them.

A few years afterwards, this same tenant vacated the Hall; and so, the landowner let it out to another party for a fixed period; after which, the occupier of the Gardens continued to use the gravelled drive as a means of access to the front of his property, as he had since his lease began.

Two years after taking up residency, the defendant in this case erected a wire fence to prevent the claimant and tenant of the Gardens from using the gravelled drive as a means of access; hence, the need for litigation.

Relying upon the wording of section 62(1) of the 1925 Act, and the fact that there had never been any other suitable means of access to his home, the claimant argued that an easement by way of implication had been granted by the landlord.

When considered by the court, the facts determined that there was a clear difference between the granting of a lease and the conveyance of interest in land or property; and that in this instance, the former applied.

There was however, the principle that under the terms of the contract there could be argued, an obligation to undertake full performance of the rights bestowed the claimant, where unless the contract provides specific exclusion of a right of way between two sharing tenants, the gravelled drive afforded both users equal powers to enforce their rights.

It was on these grounds, that the judge endorsed the action and awarded accordingly, while holding that:

“[A] grantor of property, in circumstances where an obvious, i.e., visible and made road is necessary for the reasonable enjoyment of the property by the grantee, must be taken prima facie to have intended to grant a right to use it.”

Book your Free Consultation