Remedies Flashcards by Hannah Moses

Claim in rem

Property claim

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Claim in personam

Personal claim

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Proprietary claims if T has original property

Claim original property

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Proprietary claim if T replaced asset with a new one

Clean substitution - claim replacement property
Or change or lien over it for value of loss
Can take property even if it has increased in value

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Proprietary claim if T used Ts money and trust money to get a new asset

Mixed asset of Ts and trusts - claim proportionate interest or
Take charge or lien over mixed asset for amount of loss

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Proprietary claim if T mixed trust money with Ts money and makes withdrawals

Can pick between rules to get best outcome
Re Hallet- T spends own money first
Roscoe- lowest intermediate balance. Not replacing funds
Re Oatway- B can chose either money or property. Has charge on mixed funds and any property purchased

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Can Re Hallet and Re Oatway benefit from increase value of assets

Yes

Get appropriate percentage

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Proprietary claim when money from 2 trusts in mixed and used to buy an asset

Bs share pari passu in mixed asset

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Pari passu

Rateably in the same portion as their funds contributed to purchase price
Each B gets proportionate share whether asset has increased or decreased in value

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Proprietary claim when T mixes money from several trusts and then makes withdrawals

Claytons case - first in, first out
Unless (according to Barlow) it is impossible to tel who was first, it would lead to injustice or would be contracts to intentions then depart from Claytons case. They would take rateable share in any remaining assets instead

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Proprietary claim when T mixed money from several trusts with Ts money and then makes withdrawals

Re Hallet, Re Oatway, then Claytons case or Barlow

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When can equitable tracing be used

Can be used by Bs and other principles of fiduciaries to recover property misapplied by fiduciaries

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What is the time limit for a personal claim

6 years
Not running against fraudulent breaches
Running from breach, B turning 18, of remainder trust vesting

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Time limit for proprietary claim

None

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Can B bring a personal claim if T is insolvent

B is an unsecured creditor

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Are Ts liable for breaches of their co-Ts

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Which type of causation is needed for a personal claim against T

But for causation

Breach caused loss

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Who does B claim against if more than one T breached trust

Ts are jointly and severally liable

Can claim for full amount against one or several

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Can B claim interest in a personal claim

Yes amount of interest is up to the court

If B dies 1 T for loss caused by all Ts can T claim a contribution from other Ts

Indemnity or claim under civil liability contributions act

When can T get an indemnity from co-T

When co-T was fraudulent but other weren’t
Co T is professional with influence over others
Co T benefited from the breach
Co T is also a B who benefited from the breach

Defences to a personal claim against T

Exemption clause in trust doc
Consent of Bs
Court discretion to relieve T of liability 
Limitation period
Latches

When do exemption clauses in trust doc relieve T of liability for breach

If breach is negligent or innocent but not if fraudulent breach
If professional T required exemption then must ensure S understood effect

What if there is ambiguity in exemption clause

Interpret it against T

What if one B consents to breach by T but other Bs don’t

Then only that B is barred from claiming against T

When will the courts relieve T of liability for breach

When T acted honestly and reasonably and ought fairly to be excused

When do latches prevent C from making a personal claim against T

When C knew of the breach, delayed in taking action and this delay detrimented T

What is the max contribution the court can require a coT to make under civil liability contributions act

100% | Decide based on Ts blameworthiness

elements of knowing receipt

receives property in breach of trust or fiduciary duty received property for their own benefit knows it is in breach whilst in posession gave no consideration

when does D need to have knowledge of breach to be liable for knowing receipt

while in possession of item not liable if become aware after disposal not liable until they become aware

what type of knowledge is needed for liability in knowing receipt

first 3 types of baden knowledge

what type of liability is knowing receipt

equitable personal liability

what can B claim from a claim in knowing receipt

value of property plus interest from date of receipt

elements of dishonest assistance

3rd party assists in breach of trust or breach of fiduciary duty and acted dishonestly when providing assistance

does T have to be dishonest for dishonest assistance

what is dishonesty re dishonest assistance

objective - would an honest person with same experience, intelligence and knowledge as D have acted different.

can a third party be liable for dishonest assistance by providing passive support to T

no they must provide positive support

does third party need to know they are assisting breach of trust or breach of fiduciary duty to be liable for dishonest assistance

no - just need to know they are assisting an illegal scheme. dont need to know what exactly.

what can B claim in a dishonest assistance case

value of loss caused by assistance plus interest

what type of claim is dishonest assistance

equitable personal liability

what are the tracing rules for a bona fide purchaser for value without notice

you cannot trace here

what are the tracing rules for a wrongful recipient (i.e dishonest assistance or knowing receipt)

the rules are the same as for a wrongdoing T if they have original property can recover it if clean substitution claim against new property if mixed with own money to buy mixed asset claim proportionate share or lien for value if mixed with own money then withdraw use Re Hallet, Roscoe and Oatway.

what are the tracing rules for an innocent volunteer ( a third party who received trust property without realising but didn't give consideration)

same tracing rules as when asserting interest against other innocent parties if they still have property B can recover it if clean substitution claim new property if mixed it with own money to buy something claim proportionate share in new asset - NOT LIEN - EQUITABLE LIEN JUST FOR WRONGDOER RECIPET if mix it with their money then make withdrawals use Claytons and Barlows DIFFERENT TO WRONGDOER WHICH USES HALLET, ROSCOE AND OATWAY Re Diplock defence

differences between wrongdoer receipt tracing rules and innocent volunteer tracing rules

no equitable lien for innocent volunteers. equitable lien is only for wrongdoers if IV mixes it with their own money then makes withdrawals use claytons and barlows. if wrongdoer mixes it with their own money then makes withdrawals use hallets, oatway and roscoe. re Diplock defence

what is the re diplock defence

if innocent volunteer used money to improve building they already owned B cannot trace into improvements. But B can trace into improvements and claim against third party's land up to increase in value caused by improvements if third party is a wrongdoer.

does re diplock apply to mixed funds/ mixed assets

no - B would claim interest proportionate to trusts contribution