Article: Equitable allowances or restitutionary measures for dishonest assistance and knowing receipt

Keywords: disgorgement; equitable allowances; remoteness of gain; dishonest assistance; knowing receipt.

Abstract: This article considers the credit given to dishonest assistants and knowing recipients in claims for disgorgement, with greater focus on dishonest assistance. Traditionally, equity has awarded a parsimonious ‘just allowance’ for work and skill. The language of causation in Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908 suggests a more generous restitutionary approach which is at odds with the justification given: prophylaxis. This tension makes the law incoherent. Moreover, the bar to full disgorgement has been set too high, such that the remedy is unavailable in practice. Therefore, even if the restitutionary approach is affirmed, it must be revised.

This article has been published in the Northern Ireland Legal Quarterly. Click here for volume 68(2).

Citation: Derek Whayman, ‘Equitable allowances or restitutionary measures for dishonest assistance and knowing receipt’ (2016) 68 NILQ 181–202.

Who are the real Villains of the Leasehold Ground Rent Escalator Scandal?

The conveyancers who acted for the purchasers. They have the greatest moral culpability and there are other legal principles at work that suggest they should bear the loss. There are numerous difficulties and obstacles, though.

N.B. Throughout this post, I assume the conveyancers did not explain the ground rent escalator clauses properly, spelling out the grave effects, to their clients. Doing so properly would satisfy their obligations to them. The criticism only applies to a conveyancer who did not do so.

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More on the Target Holdings Saga: Creggy v Barnett (Case Note): [2017] Conv 139

Oh No, I hear you cry. Not another piece on the wrangling over the remedy for breach of trust in Target Holdings Ltd v Redferns [1996] 1 AC 421 (HL). But there are two reasons to take heart. First, I am swimming against the stream of academic articles hostile to that case and its successor, AIB Group (UK) Plc v Mark Redler & Co Solicitors [2014] UKSC 58, [2015] AC 1503. Second, the reviewer asked him or herself the question of whether I had anything useful to add and decided the answer was yes.

Abstract: Discusses the Court of Appeal’s obiter ruling in Barnett v Creggy on whether a claim for equitable compensation for the breach of trust of paying away trust money without authorisation engaged the Limitation Act 1980 s.29(5)(a), with the effect that the trustee’s acknowledgement of the debt or other liquidated sum restarted the limitation period. Considers its implications for determining the nature of the remedy for the breach of trust.

The Conveyancer and Property Lawyer is syndicated on Westlaw. Log in, then click here to read my note, or navigate to [2017] Conv 139.

Broadly speaking, I identify additional reasons for the dicta in Ex p Adamson (1878) 8 Ch D 807 (CA) suggesting that the remedy is like a debt (thus not susceptible to the legal principles of causation and going against the ratio in Target Holdings). These are found in the rules for the acknowledgement of the equitable liability, which was then transmuted into a legal debt. However, my view is that this is a purely historic restriction emanating from the old form of action, which did not admit legal principles such as causation. We should not allow the forms of action to rule us from their graves, as Maitland nearly said. Just as other claims under this form eventually admitted legal principles (particularly restitution for unjust enrichment in change of position), so should this one.

Remodelling Knowing Receipt as a Gains-Based Wrong

The day has finally arrived. My new article is out in the Journal of Business Law:

Derek Whayman, ‘Remodelling Knowing Receipt as a Gains-Based Wrong’ [2016] JBL 565

It is syndicated on Westlaw – log in using your usual account then click here.

Abstract

This article analyses the nature of knowing receipt. It finds its previous characterisations as a form of unjust enrichment or trustee-like liability wanting in the face of newer authority and complex commercial situations. It argues that knowing receipt is a gains-based profit-disgorging wrong and this best describes its remedies.

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Ideology in Private Law

It can be difficult to find ideology in the dry world of private law. Undergraduates are often attracted to the more controversial parts of the law – for instance, public law – where ideology is overt. The only real difficulty is, however, the need to look a little bit harder.

The case of M&S v BNP Paribas concerned the exceedingly dry topic of the implication of terms into a contract. This case in effect overturned the previous leading case, Belize Telecom. It was a commonly-held view that the effect of Belize Telecom was that the court could imply terms that were not expressly put in a contract simply with reference to the process of construing the parties’ intentions. The law was not constrained by the restrictive ‘officious bystander’ and ‘business efficacy’ tests. It was a case of determining what was agreed. But this was said to be ‘wrong in law’ in BNP Paribas.

What possible ideological change could this have wrought? I suggest that it reflects acceptance by the senior judiciary, contrary to previous trends, that the private law cannot be made wholly subordinate to what persons and institutions want it to be without reference to external norms and community standards – what Alastair Hudson calls ‘autopoiesis’. Instead, the courts are recognising that private law, to some extent, has to be subordinate to external norms and standards. In short, private law cannot be privatised.

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Forthcoming Publication: Remodelling Knowing Receipt as a Gains-Based Wrong

About a year ago, I presented a conference paper at the SLS Conference in 2014. Not taking my own advice that being dilatory is not a reasonable excuse, I only updated it to reflect new authority – and indeed a change in my own opinion – in August 2015. Happily it has been accepted for publication in the Journal of Business Law. Thanks go to Prof Rob Merkin QC who had it peer reviewed in what seems to me to be a record time of four days. The only downside is, to Prof Merkin’s credit, the JBL has a large backlog and my article will not appear for up to a year.

Abstract

This article analyses the nature of knowing receipt. It finds its previous characterisations as a form of unjust enrichment or trustee-like liability wanting in the face of newer authority and complex commercial situations. It argues that knowing receipt is a gains-based profit-disgorging wrong and this best describes its remedies.

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The Backstory of Sinclair Investments

Keywords: Fiduciary Duty; Bribes; Secret Commissions; Constructive Trusts; Proprietary Remedy; Insolvency; Fraud; Ponzi Schemes

Introduction

In my case note ([2014] Conv 518) on FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2015] AC 250, I said (at p 522) that:

If one reads the many judgments in the Sinclair litigation, a rather unattractive picture of a very undeserving claimant appears to whom it was right to deny priority over Versailles’ creditors.

I was referring to the extensive litigation up to and including the most famous Sinclair case, Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347, [2012] Ch 453. That is the most famous case in the series, where the claimants, Sinclair Investments, lost before the Court of Appeal on their claim that they should have a proprietary remedy over the applicable breach of fiduciary duty. That case has now been overruled and a proprietary remedy is always available for unauthorised profits made by a breach of fiduciary duty: FHR v Cedar.

So, it should be expected that, if similar facts are presented to the courts again, another Sinclair would win. The amount of money at stake was huge, some £28.7m. So why is it that I was so concerned? I had planned to use the reconstructed backstory of Sinclair v Versailles that follows in my thesis, but thanks to the Supreme Court in FHR v Cedar my sub-thesis that the decision and formulation Sinclair was right is, putting it mildly, heavily obsolete. I have no formal use for the backstory. But it does demonstrate my point, and is an interesting read; it is even ‘somewhat racy’ according to Professor TT Arvind. Hence it is made available here.

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