liability of trustees and fiduciaries

Question 1

Are there are any protections for a trustee breach?

Answer 1

1) exemption clauses in the trust instrument
2) Defence: Section 61 TA 1925
3) Consent/acquiescence/instigation
4) Limitation period
5) advertisement/benjamin orders/court directions
6) indemnity insurance

Question 2

What are the equitable remedies?

Answer 2

1) personal claim- against the individual- monetary remedy

2) Proprietary claim- made against an asset

Question 3

How do you assess the value of the breach of a personal claim?

Answer 3

Breach of trust- Did the breach cause loss? But for test of causation- Objective justification- consider income and capital- joint and several liability- Apportionment between trustees/wrondoers

Breach of Fiduciary duties- Did the breach cause loss? But for test of causation- fiduciary liable for own breach

Did the trustee make unauthorised profit? Trustee must account for profit. Remedy: account of profits (or constructive trust over traceable proceeds)