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Chapter

Cover Equity

4. Amplifying Property Rights  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter considers Equity's special techniques for safeguarding property interests. Property's primary protection comes from rules that enable disputing parties to resolve title conflicts and priority disputes. Absolute justice is unlikely; the law must simply decide who has the stronger claim. Property's secondary protection is more controversial. Equity's tracing and claiming strategies allow claimants to assert new proprietary rights in substitute assets. These rights preserve the insolvency priority of the initial proprietary claim or secure entitlements to windfall secondary profits. Neither of these options follows inevitably from the initial assertion of a proprietary right.

Chapter

Cover Administrative Law

10. How to sue the government: judicial processes and judicial remedies  

This chapter addresses the extraordinary process of judicial review and the remedies available to the court. The process and the remedies are compared to the process and remedies in ordinary claims (which can also be used to control administrative action). In their self-regulation in developing these complex processes, the challenge for judges is to keep things in proportion: the attempt to achieve due process in judicial control of administrative action is essential to the administration of justice. The chapter explains the irony of process, which was introduced in Chapter 4: the courts may need to provide forms of process that are excessive and wasteful in some cases, in order to protect the administration of justice.

Chapter

Cover Company Law

20. The derivative claim and the rule in Foss v Harbottle  

This chapter discusses further aspects of shareholder remedies, namely the common law multiple derivative claim; derivative claims under Companies Act 2006 (CA 2006), Part 11; the reflective loss principle; personal actions at common law; and specific statutory rights under the CA 2006. At common law, a shareholder aggrieved by a breach of duty by a director could bring a derivative claim on behalf of the company, as an exception to the rule in Foss v Harbottle. That common law claim now remains as a common law multiple derivative claim whereas the ‘ordinary’ derivative claim now is a statutory claim under CA 2006, Part 11. This chapter explores both types of derivative claim and assesses their value to shareholders. An important constraint on shareholder recovery is the principle governing reflective loss which has recently been restated by the Supreme Court. This chapter considers the current position in the light of that development.

Chapter

Cover Business Law

20. Ending Employment Contracts at Common Law; and Duties to Redundant and Transferring Staff  

This chapter identifies the remedy for the termination of contracts of employment through the common law claim of wrongful dismissal. It addresses situations of redundancy, and the rights of individuals and obligations on employers when the business is transferred to a new owner. Each of these measures offer protection to employees, and employers should understand the nature of these rights, the qualifications necessary for each mechanism, and the remedies available, to ensure they select the most appropriate mechanism to bring the employment relationship to an end. Before the 1960s, contracts of employment were largely dealt with by the ‘normal’ rules of contract law and were often heard by courts that hear contractual disputes. It is important to be aware of the mechanisms that will enable termination of the employment relationship without transgressing the law in order to maintain good working relations.

Chapter

Cover Equity & Trusts Law Directions

18. Tracing  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Trustees have personal liability in an action for compensation or account. If the action proves worthless in practice because the trustees are impecunious or have been declared bankrupt, and hence cannot repay trust monies to the fund, the beneficiaries may be able to trace the value of their trust property into bank accounts and into assets that have been bought with the trust property. It is the value of the trust property, not the precise item of the property itself, which is sought or traced in most cases. Tracing is a process that gives rise to the ultimate remedy of recovering misapplied money or property. This chapter examines tracing and the limits to common law tracing, the distinction between proprietary remedies and personal remedies, and how the rules for tracing in equity may be applied to unmixed funds, mixed funds and assets purchased with such funds. It also discusses the artificiality of the distinction between common law and equitable tracing rules, defences to the common law restitutionary claim and advantages of proprietary rights.