Fiduciary Duties: Staying virtuous

A recent Privy Council case indicates how the court will determine remedies and damages for breach of fiduciary duty. Joseph de Lacey explains ‘The case shows the flexibility of the concept of constructive trusts, and how they can be and are used to protect those to whom fiduciary duties are owed.’ On 27 March 2017 …
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Akita Holdings v Turks and Caicos Islands [2017] UKPC 7

Wills & Trusts Law Reports | Summer 2017 #168

Mr H was a ‘belonger’ (a citizen of the Turks and Caicos Islands) and appointed as a government minister in 2003, remaining in government until 2008. There was a policy entitling a belonger to apply for a conditional purchase lease over Crown Land subject to certain conditions which, if met, entitled the belonger to purchase the freehold title at a discounted rate, in this case of 50% of the open market value.

In 2004, Mr H applied for a lease and in setting the sale price the government relied on a 1998 valuation of the land resulting in a discounted price of $75,200...

Equitable Tracing: Overdrawn accounts and backward tracing

Mark Pawlowski considers the case for accepting backwards tracing as part of English law ‘A debt is an asset in the hands of the creditor and so can provide a basis for tracing in relation to the creditor’s assets.’ In Bishopsgate Investment Management Ltd (in liquidation) v Homan [1994], the Court of Appeal held that …
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Investec & anr v Glenalla & ors

Wills & Trusts Law Reports | March 2017 #167

The plaintiffs were the former trustees of the Tchenguiz Discretionary Trust (the ‘trust’), which had been established in Jersey by Declaration of Trust dated 26 March 2007 for the benefit of a class of beneficiaries comprising Robert Tchenguiz and his children a remoter issue. The Trust was funded initially by an appointment from the Tchenguiz Family Trust which had previously been established in the British Virgin Islands. Subsequently, the trustee of this trust entered into a loan agreement for borrowing of monies from Kaupthing Bank (the ‘bank’) and then made ...

Brazil v Durant [2015] UKPC 35

Wills & Trusts Law Reports | October 2015 # 153

The effective plaintiff was the municipality of Sao Paulo (the municipality). The Federal Republic of Brazil was nominally the plaintiff because its constitution required it to be a party to any action brought outside Brazil by a Brazilian public authority. The defendants were companies registered in the British Virgin Islands (the companies) which were, at the relevant time, under the practical control of Mr Paulo Maluf and/or his son Mr Flavio Maluf. From 1993 Mr Paulo Maluf had been mayor of the municipality.

The case concerned payments made to Mr Paulo Maluf, or others on his ...

Trusts: Trust comes first

Roadchef is a straightforward application of Hastings Bass to an EBT, finds Marilyn McKeever ‘This sorry tale is a reminder to the trustees of employee benefit trusts, pension schemes and, indeed, family trusts that they have onerous duties which they must exercise in the interests of their beneficiaries.’ In the case of Roadchef (Employee Benefit …
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Secret Commissions: Unauthorised profits

Mark Pawlowski and James Brown consider a recent ruling on proprietary relief for a secret commission acquired by an agent for securing the purchase of a property The difficulty confronting future courts will be to identify which situations fall within the opportunity category identified in Sinclair and which fall outside it. It is trite law …
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Independent Trustee Services Ltd v GP Noble Trustees Ltd & ors [2012] EWCA Civ 195

Wills & Trusts Law Reports | September 2012 #122

Anthony Morris (Mr Morris) orchestrated a series of frauds between August 2007 and April 2008 by which £52m was misappropriated from various occupational pension schemes by their trustees, GP Noble Trustees Ltd and BDC Trustees Ltd. The appellant was Independent Trustee Services Ltd (ITS), which had been appointed as trustee of the 1653 pension schemes by the Pensions Regulator in July 2008. Mr Morris was found liable in dishonest assistance for £52m and in knowing receipt for £4.89m by Peter Smith J in July 2010 ([2010] EWHC 1653 (Ch)) (the chancery action).

Mr Morris had married...

Equitable Tracing: Proprietary base needed?

In the first of two articles, Sukhninder Panesar discusses different approaches to equitable tracing in light of the Court of Appeal decision in Sinclair ‘Until the decision of the Privy Council in AG for Hong Kong v Reid [1994], English law had argued that the right to assert equitable ownership over unauthorised gains in the …
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