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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Backwards Tracing, Causal Links and Unjust Enrichment in Economic Reality: Relfo Ltd v Varsani [2014] EWCA Civ 360 Extended Case Comment

Introduction

Al Capone was reputed to have said ‘if you’re going to steal, steal big.’ It hardly needs adding that one would be well advised to place those ill-gotten gains beyond the reach of the law. These principles seem to have guided the fiduciary in the recent Court of Appeal case of Relfo Ltd v Varsani [2014] EWCA Civ 360. However, reminiscent of the contemporaneous case of FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2014] 3 WLR 535 it seems the appellate courts will take a dim view of such activities and will reshape the law to make it easier for a claimant to achieve restitution of the sums abstracted.

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Clickbait

I have been attracting followers. Diverse followers. Not even criminologists, or law and economics scholars, critical legal theorists or other unusual characters in the great and diverse menagerie of law. It’s a shame, because I welcome relevant comments on my posts by anyone who takes a genuine interest.

No, these new followers’ blogs have been completely unconnected with my musings, which, let’s face it, are a minority interest. Why, oh why, would they want to follow me?

The only possible reason is that they want reciprocal follows, or even mere viewing statistics. People, COME ON! This is quite pathetic. Build a proper network upon quality, not quantity. Anyone who scrutinises your pages won’t be fooled by these false and fraudulent inflations. At best you’ll look like you’re building a social network, not a professional one. At worse you’ll be dismissed as fake.

I will not be taking the bait. Move along, now.

Conference Paper: The Evolution of Knowing Receipt

The Society of Legal Scholars 2014 Conference has just gone by. I presented my (first ever) paper, The Evolution of Knowing Receipt, to the Property and Trusts section.

EDIT: I have removed the paper from academia.edu because an updated version is to be published in the Journal of Business Law.

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FHR v Cedar and Early Career Publication

I have it on good authority that established academics tend not to write many case notes any more. This is because they do not qualify for the REF, and therefore are not a good use of time where there are plenty of other pressures.

The corollary of this is that early career researchers have better opportunities to cut their teeth on case notes, both in terms of developing writing skills and getting their names about.

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