Readers of the Guardian may be familiar with its consumer rights column "Your problems", in which the paper helps readers deal with issues they are having with (usually) household name companies.

The column on 23 November 2023 concerned a customer who had ordered a laptop from HP's website which was on offer for £399. The customer's letter described what had happened as follows:

"I placed an order and received various emails confirming the order and payment. Parcelforce texted the delivery slot. No delivery. Parcelforce and HP’s tracking systems then claimed I had refused the parcel. I scheduled a redelivery for the next day. Parcelforce then rang me and the agent acknowledged a delivery had not been attempted and that the tracking information was false. It claimed HP had requested that the parcel be returned to sender.

HP denied this and promised, in two subsequent emails, to send a replacement. Nothing came. I called HP again and was again promised a replacement was on its way. An email confirmed this the next day. Then came another email informing me HP had recalled the item due to a pricing error, stating it was under no obligation to provide a product if a pricing error was “obvious and unmistakable and could have reasonably been recognised by you as a mispricing”.

The Guardian's journalist considered that a contract had already been formed between the customer and HP once the order confirmation had been sent, as specified in HP's own terms and conditions. The view expressed in the column was that HP couldn't then back out of that on the grounds of a pricing error unless it could show that the customer had deliberately taken advantage of a mistake.

Remedies in Scotland for breach of contract

Let's assume the Guardian's journalist was correct about all that. On that basis, by not delivering the laptop after receiving payment at the agreed price, HP was in breach of contract. HP refunded the customer and also provided a voucher for 20% off a future purchase.

There were many comments on the article encouraging the customer to bring a claim against HP in court, and many others saying there would be no point in doing so since the customer had not suffered any loss.

The contract between the customer and HP was probably governed by English law, given the registered office of HP's UK-based subsidiary, but if this had been a Scots-law governed contract, the customer would have had another option: an action seeking specific implement (known as an action ad factum praestandum).

In Scotland, unlike in England, a party generally has the right to demand that the other party perform the original contract, rather than instead having to make do with damages to compensate for any loss suffered. That could have been helpful here – what the customer really wanted was to get the laptop and not be refunded £399. Instead, they will have to buy the laptop for presumably a lot more, even with their 20% off voucher.

The right to demand specific implement is not absolute; there are some exceptions, including where compliance is impossible (in which case there may be a remedy in damages), where the obligation in question is the payment of money, or where the obligation is not precise enough for the court to make an order. Generally, though, whilst the court retains an equitable discretion, the remedy of specific implement will only be withheld if there is a very good reason to do so.

The lesson? If your contract is governed by Scots law and the other side breaches it, consider whether compelling performance might be preferable to damages, because unless there are fairly unusual circumstances, the court should be ready to grant a request for specific implement.


Fiona Chute

Senior Associate

Joyce Cullen