All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses its discussion on personal claims, where the claimant seeks a sum of money from the defendant but does not assert any right to any particular property. However, even where the defendant is solvent and could satisfy a personal claim, a proprietary claim might often be more desirable. If the property has risen in value, then that uplift in value will necessarily benefit the claimant if the claim is proprietary, but not if the claim is personal. A personal claim for the value of the property at the time of the third party’s wrong might be preferred where the property has fallen in value. Moreover, a personal claim will be the only possible type of claim available to the claimant if the property in question has been dissipated and no longer exists. In such circumstances, a proprietary claim is impossible and a personal claim alone can be pursued.
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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. When property is held on trust, arising expressly or implied by law, any breach of the trustee/fiduciary obligation will lead to a remedy. This chapter explains the personal and proprietary remedies available to the claimant. A personal claim is one made against the trustee/fiduciary personally; it is not based upon the recipient having the property in their possession. A proprietary claim is based upon the defendant having the property or its replacement in their possession and being required to return it, or its substitute, to the claimant. The claimant, after identifying the breach, will often have the choice of which claim to make and there may be more than one possible remedy.
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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. When property is held on trust, arising expressly or implied by law, any breach of the trustee/fiduciary obligation will lead to a remedy. This chapter explains the personal and proprietary remedies available to the claimant. A personal claim is one made against the trustee/fiduciary personally; it is not based upon the recipient having the property in their possession. A proprietary claim is based upon the defendant having the property or its replacement in their possession and being required to return it, or its substitute, to the claimant. The claimant, after identifying the breach, will often have the choice of which claim to make and there may be more than one possible remedy.
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This chapter discusses the rules on limitation. The expiry of a limitation period provides a defendant with a complete defence to a claim. Limitation is a procedural defence. It will not be taken by the court of its own motion, but must be specifically set out in the defence. Limitation runs from accrual, which is when all the necessary elements for the cause of action are in existence. Technically, time runs from the day after the accident or breach, and stops running when the claim is brought. This is when the claimant has done everything they can to issue the claim form. Time does not run if the claimant is under disability, and in cases of fraud, mistake, and concealment. In personal injury and latent damage claims time will not start running until the claimant has the requisite ‘knowledge’, and there is a discretion to disapply limitation in personal injury claims.
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This chapter discusses the rules on limitation. The expiry of a limitation period provides a defendant with a complete defence to a claim. Limitation is a procedural defence. It will not be taken by the court of its own motion, but must be specifically set out in the defence. Limitation runs from accrual, which is when all the necessary elements for the cause of action are in existence. Technically, time runs from the day after the accident or breach, and stops running when the claim is brought. This is when the claimant has done everything they can to issue the claim form. Time does not run if the claimant is under disability, and in cases of fraud, mistake, and concealment. In personal injury and latent damage claims time will not start running until the claimant has the requisite ‘knowledge’, and there is a discretion to disapply limitation in personal injury claims.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Montagu’s Settlement Trusts [1987] Ch 264, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Montagu’s Settlement Trusts [1987] Ch 264, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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Qualified one-way costs shifting (QOCS) provides costs protection to claimants in personal injuries claims. If the claimant wins, the defendant should be ordered to pay the claimant’s costs in the usual way. However, if the claimant loses, under QOCS, while the claimant remains liable to pay its own lawyers’ costs, and may be ordered to pay the successful defendant’s costs, the claimant will be protected against actually having to pay those costs to the defendant. This chapter discusses cases where QOCS applies; the effects of QOCS; and loss of QOCS protection.
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Qualified one-way costs shifting (QOCS) provides costs protection to claimants in personal injuries claims. If the claimant wins, the defendant should be ordered to pay the claimant’s costs in the usual way. However, if the claimant loses, under QOCS, while the claimant remains liable to pay its own lawyers’ costs, and may be ordered to pay the successful defendant’s costs, the claimant will be protected against actually having to pay those costs to the defendant. This chapter discusses cases where QOCS applies; the effects of QOCS; and loss of QOCS protection.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Re Montagu’s Settlement Trusts [1987] Ch 264, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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Offers to settle are a common occurrence prior to the resolution dispute or the start of trial. There does not appear to be a limit on the number of offers that can be made, although credibility and common sense would indicate that offers to settle should be made purposefully, but not irrationally. This chapter discusses the main features of Part 36 of the Civil Procedure Rules (CPR) and its Practice Direction in relation to commercial and personal injury claims; practical suggestions on dealing with Part 36 offers; and advising the client. It considers recent cases that demonstrate how the courts apply and interpret CPR Part 36. The chapter will also discuss the relative merits of global offers, and other offers that do not have the ‘protections’ or procedures associated with Part 36 offers.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions and coursework. Each book includes typical questions, suggested answers with commentary, illustrative diagrams, guidance on how to develop your answer, suggestions for further reading, and advice on exams and coursework. This chapter examines the law on minority shareholder remedies, which provide some limited protection or avenues of redress for a shareholder with grievances concerning the actions of the company, directors, or majority shareholders. The chapter explores, in particular: the rule in Foss v Harbottle; derivative claims; personal claims and the issue of reflective loss; the ‘unfair prejudice’ remedy in Companies Act 2006, s. 994; and petitions to wind up the company on the ‘just and equitable’ ground under Insolvency Act 1986, s. 122(1)(g).
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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.
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This chapter discusses the available remedies when a company is poorly run, including the types of issues that are legitimate subjects of complaint. Topics covered include: pursuing claims for maladministration; why shareholder litigation is such a problem; the old common law rule in Foss v Harbottle; the statutory derivative action for bringing corporate claims and limitations based on reflective loss; personal claims by members; and unfairly prejudicial conduct of the company’s affairs.
