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Chapter

Cover Equity & Trusts

17. Personal Claims and Remedies  

Paul S Davies and Graham Virgo

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 considers the personal liability of trustees for breach of trust and studies proprietary remedies, which involve the claimant’s recovering particular property from the defendant, or obtaining a security interest in the defendant’s property. Proprietary remedies provide the crucial advantage of providing the claimant with priority over other creditors in the event of the defendant’s insolvency. Personal claims, by contrast, do not enjoy such priority over the claims of others. However, where the defendant is solvent and the property in question has fallen in value, a personal remedy for the value of the claimant’s loss or defendant’s gain may be preferable to a proprietary remedy. Personal remedies are also to be preferred when the property in which the claimant had a proprietary interest has been dissipated, because in such circumstances no proprietary remedy will be possible.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

34. Remedies against the trustee for breach of trust  

This chapter examines the nature of liability for breach of trust. Trusts impose obligations on the trustees, and the trustees can be held liable for breach of trust if their failure to meet the obligations imposed upon them causes a loss. The liability of a trustee for a breach of trust is a personal liability, and any remedy is available only against the trustee as an individual, and not against any specific assets. If the trustee in breach has died, their personal liability continues against their estate. There may be separate remedies in relation to any assets retained by the trustee or in the hands of a third party, and different remedies are also available for breach of fiduciary duty.

Chapter

Cover Equity and Trusts Concentrate

12. Remedies for breach of trust  

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.

Chapter

Cover Concentrate Questions and Answers Tort Law

12. Damages  

Dr Karen Dyer and Dr Anil Balan

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. This chapter discusses the issue of damages, covering key debates, sample questions, diagram answer plan, tips for getting extra marks, and online resources. To answer questions on this topic, students need to understand the following: the primary purpose behind an award of damages; the different types of damages; the three principal types of damage for which a remedy may be available: personal injury (death and psychiatric harm included), property damage, economic loss; and how to calculate an award (in principle).

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.

Chapter

Cover Commercial Law Concentrate

9. Remedies of the unpaid seller  

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. This chapter considers the remedies that are available to a seller against the buyer for breach of contract and the position when the buyer refuses delivery of the goods. These are real remedies and personal remedies, which are set out in Parts V and VI of the Sale of Goods Act 1979. An example of a real remedy is a lien over the goods, whereas two examples of a personal remedy are an action for the price and damages for non-acceptance of the goods.

Chapter

Cover Street on Torts

26. Remedies  

This chapter examines the basic principles of remedies for tort claims. The judicial remedies include damages and injunctions. This chapter discusses principles concerning the award of the different types of damages, which include nominal damages (for rights infringements resulting in no tangible loss), aggravated damages (for affronts to the claimant’s dignity), exemplary damages (which are designed to punish and deter future wrongdoing), and contemptuous damages. Special reference is made to the application of the principles in cases of death and personal injury, the former topic encompassing discussion of the survival of actions principle and of the Fatal Accidents Act 1976.

Chapter

Cover The Principles of Equity & Trusts

1. An Introduction to Equity  

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines a fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

Chapter

Cover Trusts & Equity

13. Breach of trust: the personal liability of trustees  

The powers enjoyed by trustees are incidents of their legal ownership of the trust property, whereas their duties are incidents of their personal office. The beneficiary of any trust, even if it is a discretionary trust, has locus standi (which means ‘a place to stand’, used to describe a claimant’s right to be heard in a court of law) to bring an action against trustees for breach of trust. Common law concepts such as causation are increasingly being introduced to limit trustees’ liability for breaches of bare trusts in commercial contexts. This chapter examines the nature and potential extent of trustees’ liability for breach of their duties, along with the remedies that are available against trustees when they breach their trust. It also looks at defences that may be available to trustees in breach and, in the absence of defences, whether trustees may be relieved of personal liability.

Chapter

Cover Trusts & Equity

13. Breach of trust: the personal liability of trustees  

The powers enjoyed by trustees are incidents of their legal ownership of the trust property, whereas their duties are incidents of their personal office. The beneficiary of any trust, even if it is a discretionary trust, has locus standi (which means ‘a place to stand’, used to describe a claimant’s right to be heard in a court of law) to bring an action against trustees for breach of trust. Common law concepts such as causation are increasingly being introduced to limit trustees’ liability for breaches of bare trusts in commercial contexts. This chapter examines the nature and potential extent of trustees’ liability for breach of their duties, along with the remedies that are available against trustees when they breach their trust. It also looks at defences that may be available to trustees in breach and, in the absence of defences, whether trustees may be relieved of personal liability.

Chapter

Cover The Principles of Equity & Trusts

18. Personal Claims and Remedies  

This chapter examines the personal liability of a trustee or fiduciary in cases of a breach of trust or fiduciary duty. It analyses the personal remedies that may be available where the defendant has breached the trust or breached fiduciary duties and discusses the advantages and disadvantages in claiming personal or proprietary remedies. The chapter focuses on the nature and function of personal remedies to reconstitute the trust following breach of trust, by means of falsification of the account. It also considers the remedies of surcharging the account, account of profits and equitable compensation. The role of the equitable allowance is also considered.

Chapter

Cover The Principles of Equity & Trusts

18. Personal Claims and Remedies  

This chapter examines the personal liability of a trustee or fiduciary in cases of a breach of trust or fiduciary duty. It analyses the personal remedies that may be available where the defendant has breached the trust or breached fiduciary duties and discusses the advantages and disadvantages in claiming personal or proprietary remedies. The chapter focuses on the nature and function of personal remedies to reconstitute the trust following breach of trust, by means of falsification of the account. It also considers the remedies of surcharging the account, account of profits and equitable compensation. The role of the equitable allowance is also considered.

Chapter

Cover Contract Law Directions

12. Specific remedies  

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. This chapter considers remedies that directly address the issue of providing the innocent party with the performance that was expected. Their use depends on a number of factors, which means that they are not universally available, and that the claimant will therefore often be left to his remedy in damages. The discussions cover actions for the price or other agreed sum, the rule in White and Carter v McGregor, affirmation and anticipatory breach. The chapter goes on to discuss specific performance and injunctions and the tests of damages being inadequate, mutuality plus other factors such as personal service contracts and the relevance of the need for supervision.

Chapter

Cover Concentrate Questions and Answers Equity and Trusts

14. Equitable Remedies  

The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. This chapter covers questions on equitable remedies.

Chapter

Cover Contract Law Directions

12. Specific remedies  

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. This chapter considers remedies that directly address the issue of providing the innocent party with the performance that was expected. Their use depends on a number of factors, which means that they are not universally available, and that the claimant will therefore often be left to his remedy in damages. The discussions cover actions for the price or other agreed sum, the rule in White and Carter v McGregor, affirmation and anticipatory breach. The chapter goes on to discuss specific performance and injunctions and the tests of damages being inadequate, mutuality plus other factors such as personal service contracts and the relevance of the need for supervision.

Chapter

Cover Concentrate Questions and Answers Company Law

7. Minority Shareholder Remedies  

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).

Chapter

Cover Sealy & Worthington's Text, Cases, and Materials in Company Law

9. Company Auditors  

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.