Interim specific implement – a brief guide

We recently published our brief guide on interim interdicts, which sets out how you can ask the court to grant a temporary order, stopping a person or company or organisation from taking actions you consider to be unlawful. But what happens when you want the court to compel someone to carry out a positive act to make them comply with a legal obligation, rather than stop them doing something?

That's where interim specific implement comes in.

An interim order in an action for specific implement can oblige a party to do a positive act, such as force them to continue to supply goods or services under a contract, whilst a dispute is ongoing. Another common use for specific implement is where a landlord wishes to force a tenant of commercial premises to stay open, as discussed in our previous blog.

An order for specific implement can be particularly important for a party who wants to ensure there is no disruption to supply, which may affect their business, whilst awaiting the final judgment from a court in relation to a contractual dispute. Like an interim interdict, the order will remain in place until it is replaced by a permanent order or recalled by the court, either during or at the end of the court action.

How do I get an order of specific implement?

Specific implement is available, in Scotland to a party, who seeks to enforce their rights under a contract. Subject to the court being satisfied it is appropriate, an interim order for specific implement is possible in both the Sheriff Court and the Court of Session. Whether the court will grant the order is fact-sensitive, and when deciding whether to make an order the court will have regard to the following factors: 

1. Are the issues identifiable?

The court must be able to identify the issues underlying the dispute and the legal basis for the order.

2. Is there a prima facie case?

The pursuer must show they have a case which has a proper legal foundation (i.e. that the obligation the pursuer seeks to implement exists) and reasonable prospects of success.

3. Does the order avoid 'significantly innovating' on the existing terms of the agreement between parties?

The court can only order compliance with contractual obligations that are clearly expressed and cannot go further than the agreed terms of the contract between the parties.

4. Balance of convenience

The pursuer must show that the inconvenience to them of the obligation under the contract not being enforced outweighs the inconvenience to the defender in being forced to perform under the contract.

5. Does an interim order provide a temporary settlement between the parties?

The granting of the interim order must provide only a temporary settlement between the parties, rather than effectively determining the case.

Can I get interim specific implement in England & Wales to enforce my rights under a contract?

Whilst the test for obtaining interim interdict in Scotland is broadly the same as it is to obtain an interim injunction in England & Wales, there are fundamental differences when it comes to obtaining an order for interim specific performance (the equivalent of interim specific implement) in England & Wales. The remedy of specific performance is not available as of right and is usually reserved for specific situations (such as obligations under an agreement related to real estate). Therefore, in England & Wales, the primary remedy for a breach of contract is damages.

Key considerations

1. Consider how clearly your contract has been drafted – if you wish to ensure continuity of supply, this should be clearly provided for in your contract so that courts have no reason to hesitate in granting an interim order if a dispute arises.
2. Consider which law you want your contract to be governed by and whether the broad range of interim remedies available under Scots law may be of benefit to you in the event of a dispute.
3. If you may be at risk from interim orders being obtained against you, you should protect yourself by lodging caveats with the relevant court. For more information on what caveats are and how Brodies can help, see our recent blog.