When a consultant breaches his or her consulting agreement, he or she is subject to remedies available to the company. These remedies are typically provided for in the agreement, and often include equitable relief and/or monetary damages.

Equitable relief refers to non-monetary remedies “in equity” that the Court can provide to a non-breaching party, such an injunction (the Court saying the consultant must refrain from doing something) or an order commanding specific performance (the Court saying the consultant must do something.) An injunction against the breaching consultant helps prevent any further breach of the agreement. A typical injunction might prevent the consultant from performing similar consulting work for a competitor, if the Judge finds that the consultant is in breach. Another injunction might prevent the consultant from sharing any confidential information, if the company asserts that the consultant breached the non-disclosure provision of the consulting agreement.

It may also be possible to enforce specific performance under the agreement - especially if the consultant was hired to perform specific duties that only he or she has the knowledge and ability to complete. Specific performance means that the consultant must follow through on his or her obligations under the agreement. To enforce the agreement specifically, the Court will have to find that the services can only be provided by the breaching consultant and that monetary damages are insufficient to address the breach.

If a court does enforce an injunction and refuses to require specific performance because the services can be performed by another party or for other reasons, the court will likely award monetary damages. The most common form of monetary damages is “compensatory damages”, meaning damages awarded to the non-breaching party that serve to “make whole” that party. These damages would likely be the cost incurred by the company to replace the breaching consultant.

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