Specific performance of a contract is a legal remedy that can compel a party to fulfil their contractual obligations when they’ve failed – or are likely to fail – to do so.
If your business relies on a key supplier or partner to deliver on an agreement and they fall short, this remedy could be the most effective way to hold them to account and protect your commercial interests.
Unlike compensation or damages, specific performance is about making the other party do what they promised. It’s often used when the subject matter is unique or when monetary damages wouldn’t adequately resolve the issue. Our commercial law solicitors can help you assess whether this remedy is available in your case, advise you on your chances of success, and act quickly to enforce your rights through the courts if needed.
Jump to:
- What is specific performance?
- What factors are considered when deciding on a specific performance order?
- Are you still entitled to damages if you obtain an order for specific performance?
- Are there circumstances where specific performance is not available as a remedy?
- Examples of when the court has ordered specific performance
- Is applying for an order for specific performance right for my situation?
- Protect your commercial agreements with the proper legal support
What is specific performance?
Specific performance is a type of remedy in contract law which is discretionary in nature – in other words, it’s up to the court to use their discretion as to whether making an order for specific performance is appropriate in the circumstances. The idea behind it is that any order in this regard is meant to compel a party to perform their positive contractual obligations, i.e. to make them do what they promised they would do in the first place.
It’s worth highlighting that you don’t necessarily need to wait until there has been an actual breach of contract before investigating this possible remedy, and there is some case law which supports that point – this will be discussed in more detail below.
What factors are considered when deciding on a specific performance order?
As mentioned above, the court enjoys a broad discretion as to whether to award an order for specific performance. In exercising this discretion, it takes into account factors such as:
- Whether performance could be possible.
- If there has been any delay in seeking the order.
- Whether you are prepared to perform your side of the contract, if you’re the one making the claim (i.e. you are the claimant).
- Whether the person against whom the order is sought (the defendant) would suffer hardship in performing.
- Whether the defendant has suffered hardship since entering into the contract, whether or not that hardship was caused by you as the claimant or is related to the subject matter of the contract.
- The difference between the benefits the order would give to one party and the cost of performance to the other (a balancing exercise).
- Whether any third-party rights would be affected.
- Whether the contract lacks adequate consideration.
Are you still entitled to damages if you obtain an order for specific performance?
Damages are still available as a remedy in addition to an order for specific performance if the court considers it appropriate. However, in cases where damages would be an adequate standalone remedy, the court will not make an order for specific performance. In order to establish that damages aren’t adequate, you would usually have to show that either:
- The subject matter of the contract in question is unique, in that there is no market substitute, or
- Those damages would be financially ineffective (however, even if damages may not provide complete compensation for this reason, the court might still consider damages to be an adequate remedy).
Are there circumstances where specific performance is not available as a remedy?
Broadly speaking, specific performance will not be ordered if the contract requires continuous duties that might require constant supervision by the court over a period of time, or if the obligations in the contract are not sufficiently precise. Courts will also, generally, not grant specific performance in relation to a contract for personal services (such as employment contracts), because such an order would restrict an individual’s freedom.
Examples of when the court has ordered specific performance
In 2015, the High Court issued a decision that may be supportive of businesses seeking to enforce compliance with contractual obligations before an actual breach of contract has occurred.
In this case, Airport Industrial GP Ltd & another v Heathrow Airport Ltd & another [2015] EWHC 3753 (Ch), the court made an order for specific performance of a contractual obligation to carry out building works in relation to leasehold property.
Interestingly, this appears to be the first authority to suggest that the court may, before the time for performance of a contractual obligation, order specific performance, requiring the defendant in a case to take steps to achieve the prescribed result.
In the Airport Industrial case, the leaseholder of the site in question was obliged to build a car park, providing 280 car parking spaces for use by the claimants and the tenant of the site. However, as time passed by, the leaseholder had not started the work, and it became increasingly obvious that there would not be sufficient time for the car park to be completed by the required date. Rather than wait until that date, the claimant sought a remedy against the leaseholder with immediate effect.
Although the court could not order the leaseholder to provide the car park ahead of the required date, it did require them to take certain steps (for example, applying for planning permission) to ensure that the car park could be completed as soon as possible. The defendant leaseholder was also, effectively, granted an additional two years to complete the building works.
Is applying for an order for specific performance right for my situation?
We understand that contractual remedies can be a technically complex minefield, which is why we have a highly skilled team of business dispute lawyers on hand to help you with providing the right advice and support if you need further guidance.
Protect your commercial agreements with the proper legal support
When you’re navigating a breach or anticipating non-performance in a commercial contract, securing the appropriate remedy can make all the difference to your business continuity and client relationships. Specific performance is one potential option, but its availability will depend on the unique circumstances of your agreement and the broader commercial context.
If you're unsure how best to enforce your contract or want to act early to avoid a costly dispute, our commercial law solicitors can advise you on structuring your contracts to protect your position and respond effectively when things go wrong. And if you’re already facing delays, non-compliance or disruption, our dispute resolution solicitors will work with you to explore the most strategic path forward, whether that’s negotiating compliance or applying to court for specific performance. We're here to help you enforce your rights, resolve disputes efficiently, and keep your business moving.
