Tracing

Question 1

Defintion of tracing

Answer 1

Foskett v McKeown - The process of identifying a nwe asset as the substitute for the old (As per Lord Millet)

Question 2

Why is equitable tracing better than common law tracing?

Answer 2

• Priority creditor status
• Common law tracing cannot trace into mixed funds (Agip v Jackson)
• Allows claim of profits
• No limitation period

Question 3

Preliminaries for equitable tracing

Answer 3

Re Diplock;

• Fiduciary relationship
• Equitable proprietary relationship

Question 4

Why is a proprietary claim better than a personal claim?

Answer 4

• Profit claimable
• Priority status above other creditors
• A personal claim depends on the person being solvent, whereas a claim against an asset is better as will always be able to recover asset

Question 5

Banque Belge v Hambrouck

Answer 5

Common law tracing can trace into unmixed funds

Question 6

Agip v Jackson

Answer 6

Common law tracing is defeated by mixing

Question 7

When will there not be a proprietary claim?

Answer 7

 Inequity (re Diplock)
 Equity’s Darling
 Dissipation

Question 8

When will a claim be inequitable?

Answer 8

Re Diplock - Claiming money back from hospital which had been relied on and would involve kicking the patients out of the hospital
Foskett v McKeown - Not inequitable to claim money children as they had not relied on it

Question 9

Bishopsgate v Homan

Answer 9

Money used to pay off unsecured debts is classed as dissipated

Question 10

Re Hallet

Answer 10

A charge can be placed over property to recover it. This will obligate recovery and sale however no profit will be recovered
- In unmixed property there is an option to place a charge over the proeprty or claim property back through an equitable propritary claim

Question 11

Foskett v McKeown

Answer 11

In mixed funds there is an option to;

• Place a charge over the property
• Claim an equitable proprietal claim over the property

Question 12

What are the different scenarios for an equitable proproietal claim in tracing?

Answer 12

o Unmixed funds
o Mixed funds
 C’s property mixed with trustee’s property in asset
- C’s property mixed with innocent volunteer/another trust fund in an asset
 C’s property mixed with pre-owned asset of innocent volunteer
 C’s property mixed with trustee’s property in bank account
• Possible exception of Re Tilley/Shalson v Russo/Turner v Jacob may apply
• Roscoe v Winder – Lowest intermediate balance rule may apply
 C’s money mixed with another trust/innocent volunteer in a deposit account
 C’s money mixed with another trust/innocent volunteer in a active current account

Question 13

Claimant’s property mixed with another trust fund or innocent volunteer’s in an asset

Answer 13

• Re Diplock - They share the property pari passu

Question 14

C’s property mixed with innocent volunteer’s in a pre-owned asset;

Answer 14

1. Re; Diplock - If there is no increase in value then the property is deemed dissipated (Millet criticises this as it is also inequitabel to deny claim of money back)
2. Foskett (obiter) as per Lord Browne Wilkinson - Where property increases in value it may be possible to place a charge over the property. However this may encounter issues of inequitability

Question 15

El Ajou v DLH

Answer 15

Where property is purchased from a mixed bank account (of trustee and claimants money) the claimant may claim a charge or a proprietal claim over the purchased property

Question 16

Presumption of honesty

Answer 16

• Re Hallet

Question 17

Rebuttal of presumption of honesty

Answer 17

• Re Oatway

Question 18

Re Tilley’s WT

Answer 18

• Where the trustee spends mixed funds to buy an asset, the claimant may only make an equitable proporietary claim over the property if there is insufficient money in the mixed fudn to reimburse the claimant

Question 19

Shalson v Russo

Answer 19

This case suggests that where the trustee has mixed the claimants assets with trust property then cherry picking should be allowed as the trustee is at fault in mixing the 2 funds. (commercial)

Question 20

Turner v Jacob

Answer 20

• Where there are other beneficiaries to the will then cherry picking should not be allowed as this would disadvantage the other beneficiaries
• However this case had unique facts and did not consider the case of Shalson v Russo suggesting it does not disapply cherry picking
• Money reimbursed to best of ability

Question 21

Armory v Delamirie

Answer 21

o Wrongdoer should not profit from their own wrongdoing, particularly in regards to uncertainty
o If the party is the wrongdoer then the claimant should be allowed to cherry pick

Question 22

The Law of Trusts and Trustees

Answer 22

Supports a Shalson v Russo interpretation

Question 23

Roscoe v Winder

Answer 23

• Lowest intermediate balance rule

Question 24

SInclair v Broughman

Answer 24

• Withdrawals shared rateably in a deposit account

Question 25

Re Clayton's Case

Answer 25

In an active current account withdrawls are subject to the first in first out rule - Criticism of re Clayton; - disapplied in re Barlow clowes as causing injustice. Instead applied park passu - Russel Cooke v prentis - suggested the rule in re Clayton is more of an exception - commerzbank impractical and unjust - rolling charges applied in other jurisdictions but rejected in uk as too difficult to implement -

Question 26

Barlow CLowes v Vaughan

Answer 26

Confirmed Re Clayton is good law in family context

Question 27

Re Ahmed & Co

Answer 27

FIFO more readily disapplied in commercial contexts

Question 28

Personal action under Re Diplock

Answer 28

= Where property is misadminstred under a will there is a personal claim for the money; - Must first sue the trustee - Recovery is loss - recovered sum - No entitlement to interest - COnfirmed in MoH v Simpson

Question 29

Boscawen v Bajwa

Answer 29

Subrogation allows the party to step into the shoes of the mortgagee Subrogation permitted where tracing into a secured asset

Question 30

Defence of change of position

Answer 30

Lipkin Gorman v Karpnale; - Property recieved in breach and spent in reliance on this receipt of funds, would be inequitable to claim it back Requirements; - Good faith (Niru v Mile Stone) - Disenrichment (doubted in Commerzbank v Gareth) - Extraordinary expenditure

Question 31

Dextra Bank v Bank of Jamaica

Answer 31

- Change of position in anticipation of receipt can be grounds for change of position

Question 32

Scottish Equitable plc v Derby

Answer 32

- Payment of debts is not extraordinary

Question 33

Phillip Collins v Davis

Answer 33

Expenditure on sex and drugs is disenrichment (as it is dissipation, no asset to trace into) and extraordinaryu as above normal level

Question 34

Recipient liability

Answer 34

= Where property receieved in knowledge of breach of trust and it is unconscionable to keep it then there will be a personal action for recovery

Question 35

El Ajou v DLH (prelimanries for a recipient liability claim)

Answer 35

o Is there a disposal of assets in breach of fiduciary duty (has the trustee nicked trust money) o Traceable receipt by 3rd party (can we connect the breach and the receipt of the property. Did Toby’s stealing of Rachel’s money mean Craig received it) o Knowledge of the breach

Question 36

Baden scale of knowledge

Answer 36

- Disapplied as too uncertain 1 – Actual knowledge 2 – Nelsonian blindness 3 – Recklessness to making enquiries 4 – Knowledge of circumstances which would indicate the facts to an hoenst and reasonable man 5 – Knowledge of circumstances which would put an honest and reasonable man on inquiry

Question 37

BCCI v Akindele

Answer 37

- Tried to introduce a new criteria for dishonest receipt, however the idea of unconscionability essentially boils down to knoweldge o Knowledge of breach of fiduciary duty will make the retention of the asset unconscionable o However what is unconscionable is not a well-defined concept and essentially comes down to knowledge again, which as previously stated has an unsatisfactorily unclear definition in Re Baden

Question 38

Dishonest assitance

Answer 38

Where the party assists in a breach of trust but does not receieve the property

Question 39

Case progression for dishoenst assistance

Answer 39

RB v Tan Twinsectra Barlow-Clowes v Eurotrust Abou-Rahmah v Abachman

Question 40

RB v Tan

Answer 40

o Require dishonesty + assistance o ‘The touchstone of liability is dishonesty’ o Dishonesty  Objective test of dishonesty  With regard to the defendants experience and attributes

Question 41

Twinsectra

Answer 41

o Suggested test for dishonesty of effectively a Ghosh test;  Was the behaviour dishonest  Did the defendant realise it was dishonest

Question 42

Barlow-CLowes v Eurotrust

Answer 42

o Twinsectra misunderstood so was reinterpreted to remove the subjective element and replace with the original idea of individual attributes o Dishonesty is deliberately not enquiring

Question 43

Abou-Rahmah v Abachman

Answer 43

o Affirmed the Barlow Clowes interpretation | o Objective test with regard to individual attributes (effectively RB v Tan)

Question 44

AG Zambia v Desai

Answer 44

Foolishness or naievity is not dishonesty

Question 45

Ultraframe v Fielding

Answer 45

Assitance is; - Planning a breach - Making a breach easier - Covering up a breach

Question 46

Grupo Torras v Al-Sabah

Answer 46

Link need not be between C’s loss and the assistance just between the assistance and the breach of trust when this results in C’s loss

Question 47

Ultrafame v Fielding (summary)

Answer 47

- Knowledge of helping someone who is up to no good - Some form of assitance; planning, cover up etc - Causal link between assitance and breach of trust. Assitance after breach is no causal