The remedial map: rights and remedies, the families of remedy, law and equity and what the client wants

A legal system declares that people have rights: to have contracts performed, to be free from careless injury, to enjoy their land in peace. A right that no court will enforce is only a statement of hope. The old maxim, in its Latin form ubi jus ibi remedium (where there is a right, there is a remedy), expresses the ideal that every wrong should have a remedy. In practice the ideal is imperfect. Some rights are enforceable only by a particular route, some wrongs cause losses that the law will not compensate, and some defendants cannot pay.

Two points follow, and they shape the rest of the course. First, the remedy is a separate question from liability. A claimant can establish that a wrong was done and still receive very little, because the loss is small, remote or avoidable. Second, the remedy sets the real value of the case. A strong claim for a remedy that is hard to get, or that cannot be collected, is worth less than a modest claim for one that is certain.

• Some remedies are what the claimant lost; others are what the defendant gained. The choice can change the figure enormously. A claimant who lost little, but a defendant who earned a great deal from a wrong, may do better by asking for the defendant’s profit (Module 4).
• Some remedies are money; others change conduct. Money is usual, because the law prefers to value things in cash. Coercive remedies are exceptional and need a reason why money is not enough (Module 5).
• Self-help and statutory remedies sit outside the list. A claimant may sometimes terminate a contract, withhold performance, set off a debt or abate a nuisance without a court. Statutes create their own remedies: fixed penalties, refunds for consumers, reinstatement for unfair dismissal. Always check whether a statute has replaced or limited the general remedies.

In the common-law world, the courts developed in two streams. The courts of common law gave one remedy, damages, and gave it as of right to a claimant who proved the wrong. When damages were not enough, litigants appealed to the Chancellor, who sat in the court of equity and could order a defendant to act or stop acting, using remedies such as the injunction and specific performance. The two courts have long been merged in most systems, but the distinction survives in the remedies and in the rules for granting them.

Today the courts of most common-law countries apply both. But the rules that govern when equitable relief is available, and the habit of asking first whether damages are adequate, are living law, and they explain much of the subject.

The most useful habit in remedies is also the simplest: before you ask what the law allows, ask what the client wants. Clients rarely say. They say ‘I want to sue’, when what they want may be the money, the return of something, an apology, the stopping of a nuisance, a clean record, a deal that can still be done or a quick end to the stress. The remedy that fits the goal is often not the one the client first named.

• Ask about the goal, the deadline and the budget. A remedy that takes two years and costs more than the sum is not a remedy for a small business that needs cash this month.
• Ask about the defendant. Will they pay? Do they have assets, insurance, a business that will continue? A judgment against someone with nothing is worth little.
• Ask about the relationship. If the parties must keep dealing with each other, a remedy that looks like a victory may destroy the relationship the client wants to keep.
• Ask what the client would settle for. The best remedy at trial sets the range in which any settlement will happen.