Description

The Enforcement of Modern Trust Structures
by Professor Richard Nolan

This paper will examine the law surrounding the enforcement of modern, complex family trust structures. In particular, it considers the standing to enforce the trust of those who are merely objects of discretionary powers, and those who are protectors of the trust. The paper will address recent case law on the subject and both its practical and theoretical implications. Not Quite Backwards Tracing by Professor James Penner Both the CA decision in Relfo v Varsani and the PC decision (on appeal from Jersey) in The Federal Republic of Brazil v Durant International Corporation accept that in certain circumstances a claimant may trace money paid into a bank account into assets previously acquired with funds from that bank account. Whether this amounts to the acceptance of ‘backwards tracing’ is not clear. These cases will be examined in light of the theoretical debate, in particular the Smith/Conaglen debate over the nature and validity of backwards tracing. The Nature of Recipient Liability by Professor William Swadling While we know that a recipient of rights dissipated in breach of trust will in certain circumstances be liable to be ordered by a court to pay over the value of what he or she received, being said to be ‘liable to account as a constructive trustee’, we are still a long way from understanding why. Some say that the liability is triggered by the recipient’s unjust enrichment. Others say it is because he is a wrongdoer. Yet another view is that he really is a trustee, coming under custodial duties with respect to the rights, and that the claim is for a breach of those duties. The purpose of this paper is to interrogate these various views. Rejecting the idea that the claim is in unjust enrichment or that the recipient genuinely is a trustee, it ultimately concludes that the only viable explanation for recipient liability is one based on wrongdoing.

The Intersection of Agency Law with the Law of Trusts
by Professor Peter Watts QC

The principal–agent relationship and the trustee–beneficiary relationship are both important institutions of Commonwealth private law. The two institutions are usually seen as discrete. Their respective rules can, however, intersect in a number of contexts. First, for example, it is very common for trusts to be established with two or more trustees jointly owning assets. The law of trusts presumes that trustees are intended to act unanimously in dealings with those assets, and may not delegate. However, at least where the trustees have legal ownership of the trust assets, a separate body of law assumes that one co-owner can authorise, or apparently authorise, another co-owner, or even a more junior delegate, to make decisions about the disposition of those assets as agent of the others. This paper intends to explore the implications of this. Secondly, it frequently proves necessary for agents to be given legal title to assets supplied by their principals (most commonly money) but on terms that they will hold that title on trust for the principal. Similarly, agents often need to be authorised to receive ownership of assets from third parties although beneficial entitlement is to rest with the principal. The respective common law and equitable duties that arise in such circumstances, and the effect of breaches of them, has given rise to difficulties in the courts. These too will be touched upon.

Accessory Disloyalty: Comparative Perspectives on Substantial Assistance to Fiduciary Breach
by Professor Deborah A. DeMott

This essay will explore the distinct wrong of lending substantial assistance to another actor’s breach of fiduciary duty, drawing on recent developments in the law in the United States and Great Britain. The essay will situate its specific focus within the framework of broader questions and issues associated with facilitating another actor’s wrongdoing, whether through affirmative conduct or nonfeasance, including distinctive elements of culpability and factual causation.

Not Quite Backwards Tracing
by Professor James Penner

Both the CA decision in Relfo v Varsani and the PC decision (on appeal from Jersey) in The Federal Republic of Brazil v Durant International Corporation accept that in certain circumstances a claimant may trace money paid into a bank account into assets previously acquired with funds from that bank account. Whether this amounts to the acceptance of ‘backwards tracing’ is not clear. These cases will be examined in light of the theoretical debate, in particular the Smith/Conaglen debate over the nature and validity of backwards tracing.

The Nature of Recipient Liability
by Professor William Swadling

While we know that a recipient of rights dissipated in breach of trust will in certain circumstances be liable to be ordered by a court to pay over the value of what he or she received, being said to be ‘liable to account as a constructive trustee’, we are still a long way from understanding why. Some say that the liability is triggered by the recipient’s unjust enrichment. Others say it is because he is a wrongdoer. Yet another view is that he really is a trustee, coming under custodial duties with respect to the rights, and that the claim is for a breach of those duties. The purpose of this paper is to interrogate these various views. Rejecting the idea that the claim is in unjust enrichment or that the recipient genuinely is a trustee, it ultimately concludes that the only viable explanation for recipient liability is one based on wrongdoing.