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Chapter

Cover Equity & Trusts

16. Liability for Breach  

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 discusses the nature of breach of trust and how a trustee can be personally liable for such a breach. Trustees may seek to escape liability by relying on an exclusion clause in the trust instrument. Such clauses might exclude certain duties owed by the trustees or exempt the trustees from liability for a breach of trust. The liability of trustees for a breach of trust is joint and several: a beneficiary may sue only one trustee for all the loss suffered. That trustee may then seek contribution from others who are responsible for the same damage. In some cases, the court might excuse a breach of trust where trustees have acted honestly, reasonably, and where it is fair to do so.

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 Equity & Trusts

18. Proprietary 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 discusses proprietary claims and remedies, which are based upon a claimant’s property rights. Proprietary claims require the claimant to have a right that can be identified in property in the defendant’s hands either through the process of following or that of tracing. Where a breach of trust or fiduciary duty has involved the transfer of property in which the beneficiary or principal has an equitable proprietary interest, the beneficiary or principal may wish to bring a claim to assert his or her proprietary interest in assets that are now in the hands of another person. Such claims are founded on the beneficiary’s equitable interest in the property, and so are properly characterized as proprietary claims. However, although the claim is founded on the beneficiary’s proprietary rights, the remedy awarded is not necessarily a proprietary one.

Chapter

Cover Equity & Trusts

11. General Principles Relating to Trustees  

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 focuses on the nature of trusteeship and its variations depending on the type of trust. Appointed trustees possess a wide variety of powers, and the misuse of these powers will constitute breach of trust. However, the determination of when the exercise of powers can be characterized as invalid and the consequences of misusing a power raise many significant and controversial issues. The chapter also discusses the different types of trusteeship and the various rules relating to the appointment, retirement, and removal of trustees. Although trustees are not generally compensated for fulfilling their responsibilities in administering the trust, in some circumstances they can receive payment to reimburse them for expenses or to pay for their services.

Chapter

Cover Equity & Trusts

13. Dispositive Powers  

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 begins with a definition of the nature of dispositive powers and duties and how they relate to the distribution of trust property to beneficiaries or objects. They are sometimes referred to as ‘beneficial’ powers and duties. It is hard to draw the distinction between dispositive and administrative powers and duties, but it is a necessary distinction since different rules relate to administrative and dispositive powers and duties. Trustees may have various powers relating to the appointment of trust property to beneficiaries, and there are various consequences of a dispositive power not being exercised. These include liability for breach of trust and the court’s exercising the power instead. Sometimes the trustees may be authorized by the court to exercise the power late.

Chapter

Cover Essential Cases: Equity & Trusts

Bristol and West Building Society v Mothew [1998] Ch 1, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bristol and West Building Society v Mothew [1998] Ch 1, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Bristol and West Building Society v Mothew [1998] Ch 1, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bristol and West Building Society v Mothew [1998] Ch 1, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Foskett v McKeown [2001] 1 AC 102, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Foskett v McKeown [2001] 1 AC 102, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Foskett v McKeown [2001] 1 AC 102, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Foskett v McKeown [2001] 1 AC 102, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Essential Cases: Equity & Trusts

Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Tang Man Sit v Capacious Investments [1996] AC 514, Privy Council. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

33. Need for control  

This chapter studies mechanisms for controlling trustees or the donees of powers and holding them accountable for their actions. It shows that the prime responsibility for supervising the activities of the trustees falls to the beneficiaries, who are able to complain to the court if they believe the trustees have committed, or are about to commit, a breach of trust. If the beneficiaries are able to apply to the court before the alleged breach has taken place, they may obtain an injunction against the trustees to restrain them from committing the contemplated breach. Trustees are also subject to a number of duties which enable the beneficiaries to keep a better check on their activities by entitling them to obtain information which will inform them of the trustees’ actions and may enable the beneficiaries to detect breaches of trust. This chapter considers those duties.

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 Pearce & Stevens' Trusts and Equitable Obligations

36. Limitation of action  

This chapter considers the defence of limitation in regard to an action for compensation for breach of trust, which are governed by the Limitation Act 1980. Actions normally have to be brought within a six-year limitation period, though there are exceptions such as fraud, where no limitation period is imposed. The related doctrine of laches (unreasonable delay) is also explored. It also considers those provisions as they apply to actions against fiduciaries who have received an unauthorized profit, which has proved more difficult because the legislation does not make any express provision for such claims. A failed attempt at legislative reform of the operation of limitation periods by the Law Commission is also explored.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

38. Tracing  

This chapter considers the process of tracing. Tracing describes the process by which the law allows the original owner of property to identify and claim as his or her assets in the hands of a third party. Since tracing and following are proprietary concepts, they can only be used if there was initially, and there remains (in its original or any substituted form), an asset or a property to which claim can be made. Tracing is resorted to most frequently when the trustee is insolvent, so that a personal claim is of limited value. It is easy to forget that in most, if not all, cases of tracing or following, the trustee will have acted in breach of trust and will personally be liable.

Chapter

Cover Essential Cases: Equity & Trusts

Swindle v Harrison [1997] 4 All ER 705, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Swindle v Harrison [1997] 4 All ER 705, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover An Introduction to the Law of Trusts

13. Breach of Trust and Remedies  

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 examines when trustees can be sued for failure to perform their duties and the remedies that may be available against them. The basic remedy available against trustees is an order requiring them to perform their obligations under the trust, or to refrain from breaching those obligations. But it is impossible to make an order requiring a trustee to perform the trust obligations (or to transfer it to a new trustee, or to give over the function to a judge) if the trust property is no longer in the trustee's hands. Where this is the case, the law requires the trustee first to repair the loss to the trust fund and then to perform his duties regarding it. The trustee's liability to make up the trust fund in this way is an aspect of his duty to ‘account’. The trustee's liability to account thus allows the trust objects to demand that he make up a shortfall in the trust assets, where that shortfall stems from a breach on his part.

Chapter

Cover Essential Cases: Equity & Trusts

Swindle v Harrison [1997] 4 All ER 705, Court of Appeal  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Swindle v Harrison [1997] 4 All ER 705, Court of Appeal. The document also includes supporting commentary from author Derek Whayman.