Breach of Trust + Trustee Liability Flashcards
what’s Joint + Several Liability?
- If you’re 1 of several Trustees = you’re Liable IF any of the other Ts make a mistake
- Sometimes expert of the group pays more than others
what’s Severe Liability from Re Brogden [1888]
T held Liable to High extent for not taking ALL POSSIBLE STEPS to obtain money from Marriage Settlement for B
how do Exclusion Clauses work for Trustee Liability from Armitage v Nurse [1997]?
You can put in a clause to remove your liability if you make a Non-Fraudulent mistake (e.g Negligence)
what does Nestle v Nat West [1993] say about Proving Loss?
Court agreed bank did a bad job, but said she couldn’t recover
- Too hard to prove the bank caused the loss
*Breach of Duty WITHOUT a Loss = NOT ACTIONABLE
(Duty of care case(?))
what’s the Difference between Fiduciary Duty + Duty of Car regarding Proof of Loss?
FD = Can be liable even w/o proof of harm to the Trust
DoC = No cause of action for breach of the Trustee’s duty of care WITHOUT proof that the trust has suffered a loss
what’s the Difference between Fiduciary Duty + Duty of Car regarding Remedies?
FD = T liable to account for profits made in breach of FD based on Trustees gain rather than the Trusts Loss (wrongful gains)
DoC = T is liable to compensate for Loss caused to trust
what is a Bare Trust + remedies for its breach?
T owes Direct duty to B
B can get Equitable Compensation from T
what’s a Traditional Settlement Trust + remedies for its breach?
- B for Life – B1
- B in Remainder – B2
- T does NOT owe Direct duty to Bs
o Because B1 wants money whilst alive + B2 wants a lot of money when B1 dies so this remainder goes to them
- T actually owed duty to the Fund
- MUST manage with eye on potential distribution to Different types of Bs
*NO damages here, as B1 or 2 Cannot show they suffered Harm
- Can only show T made mistake = made value go down
what does Swindle v Harrison [1997] say about Deceit?
Deceit can mean Fiduciary is liable to pay compensation
Held = compensation available in principle, BUT not here due to facts; as even if Fiduciary had Not breached his duty the Principal would have still taken the loan
what does the Limitation Act 1980 say across ss. 21, 22, 28, 32
- Got 3 years to bring action, when it was reasonably discoverable + you’re an Adult
- Helps where Trustees hide their breaches –> if there’s been concealment etc. = Time does Not Run
- If you take money out of a Trust account + put it into yours = NO Time Limit
what does the Section 61 of the Trustee Act 1925 allow?
may allow Court to relieve T from Personal liability IF they acted Honestly + Reasonably + ought to be excused for the Breach
