ERISA’s underdeveloped civil enforcement mechanism, section 502(a), has generated extensive litigation. Judicially crafted strictures on the relief available to participants have arisen with respect to standing, scope of judicial review, causes of action, and remedies. While the Supreme Court has held those with a colorable claim to benefits have standing, precisely what that means has proven elusive. Judicial review of denied claims is strictly constrained. Court access requires that participants have exhausted internal review processes, and if the plan grants the administrator discretion to determine eligibility for benefits or construe the plan’s terms (which is virtually always), judicial review is restricted to a cursory scan for abuse of discretion. Deferential review survives even if the administrator is conflicted: lower courts are instructed to consider the conflict merely as one factor in and overall assessment of whether discretion was abused. Finally, the Court has held that ERISA does not permit the full panoply of damages one would expect in the aftermath of contractual or fiduciary breach. Consequential damages are unavailable for denied claims, and equitable relief for fiduciary breach is limited to what was typically available in equity in the days of the divided bench.

The purpose of orders of specific performance of a contract and of injunctions is to compel the performance of legal obligations. Many, though not all, of the considerations relevant to an order granting specific performance of a contract are also germane to the award of an injunction. Matters such as inadequacy of damages, hardship and the ability of a court to supervise the execution of its own orders are relevant to both remedies (see textbook chapter 3). Underlying the principles governing these orders are policy questions relating to the nature and limits of judicial coercion to which monetary remedies, such as damages, do not usually give rise. These questions include: to what extent can private law (as opposed to the criminal law) restrict individual freedom, including a person’s freedom to select his or her employment; can a court compel parties whose commercial relationship has broken down to cooperate with each other; and what are the limits of a court’s power to prevent wrongdoing, for example where the wrong is likely to occur outside a court’s jurisdiction but will cause damage within its jurisdiction?

One distinguishing feature of equitable remedies is their discretionary nature. Common law remedies accrue as of right once the plaintiff has made out her cause of action. However, equitable relief is not automatic. Equity acts to correct the defendant’s conscience and sometimes this may not lead to full recovery, or indeed any recovery, for the plaintiff. Because the court weighs factors from both the plaintiff’s and defendant’s perspectives ‘that tend towards the justice or injustice of granting the remedy that is sought’, there is some unpredictability involved in equitable remedies. There is a set of well-identified grounds that inform the court’s exercise of discretion. Because these grounds are used to reduce or deny the plaintiff’s remedy, they are often referred to as ‘equitable defences’. They are merely factors relevant to the exercise of remedial discretion. They include the doctrines of laches and acquiescence, unclean hands, and hardship to the defendant. These are by no means the only cases in which equity will deny a plaintiff a remedy. Another highly relevant matter, which is discussed in this chapter, is the effect of the order on third parties.

Recent court decisions apply the received understanding among lawyers and historians of the origins and development of the penalty doctrine in contract law. This is that the doctrine first developed in the Court of Chancery, applying equitable principles, in the sixteenth and seventeenth centuries; and that the relief was found so useful and became so routine that the common courts began to follow the practice in equity by the late seventeenth century. Thereafter, the common law subsumed the field. This chapter shows otherwise. Based on a fuller study than before of the printed and manuscript source material, it is shown that the common law courts never developed a lasting doctrine against penalties as such. Rather, they gained statutory powers to grant relief equivalent to that available in equity courts. No judge-made common law doctrine of relief from penalties survives today, and this is no need for concern. Despite their false portrayal as uncertain and constantly changing, the doctrines of equity are stable, well-known and well-attuned to application by courts in modern conditions.