Remedies Flashcards
Claim in rem
Property claim
Claim in personam
Personal claim
Proprietary claims if T has original property
Claim original property
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
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
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
Can Re Hallet and Re Oatway benefit from increase value of assets
Yes
Get appropriate percentage
Proprietary claim when money from 2 trusts in mixed and used to buy an asset
Bs share pari passu in mixed asset
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
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
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
When can equitable tracing be used
Can be used by Bs and other principles of fiduciaries to recover property misapplied by fiduciaries
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
Time limit for proprietary claim
None
Can B bring a personal claim if T is insolvent
B is an unsecured creditor
Are Ts liable for breaches of their co-Ts
No
Which type of causation is needed for a personal claim against T
But for causation
Breach caused loss
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
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
no
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
