It’s out, as promised. My musings on the case of FHR European Ventures LLP v Cedar Capital Partners LLC have been published in issue 6 of The Conveyancer.

Derek Whayman, ‘Proprietary remedy confirmed for bribes and secret commissions’ [2014] Conv 518 (Westlaw link)

The Conveyancer and Property Lawyer Issue 6 2014

For obvious reasons I cannot reproduce the note in full here. However, I can tantalise with an excerpt where I complain about the fact that there is no longer the possibility of only awarding a personal remedy to an undeserving claimant (at p 522). I refer to Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347, [2012] Ch 453.

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. The key point is this: the claimant had taken an assignment of the other traders’ claims and of the company used to process their investments. They had bargained for the chance of proprietary relief over what was left of the traders’ investments destined for the Ponzi scheme, which they duly got. They had not bargained for the claim over the share sale, which would have been a windfall. The Sinclair test was well placed to decide the case fairly because it gave proprietary relief only over the proximate misfeasance.

Owing to the overruling of Sinclair, I have some surplus writing that no longer reflects the law. While most of it will be of interest to no-one, there is something interesting in there. That unattractive picture can be and was developed so that it is possible to see just how undeserving Sinclair Investments were. Once I’m sure I have no further peer-reviewed-journal-publication-attempt need for it, I will upload it here where my racy account of the skulduggery that went on is available for your reading pleasure.

Advertisements