15. Breach of trust: defences and relief

2019 ◽  
pp. 344-368
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Civil Liability ◽  
Fiduciary Duty ◽  
Legal Knowledge ◽  
General Law ◽  
Key Points

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. A trust must be duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Similarly, a trustee should be liable for a dishonest breach of trust. Not every breach of trust is deliberate or dishonest. Liability may arise due to lack of care and other inadvertent breaches of trust, and even due to an essentially ‘technical’ or ‘formal’ breach of fiduciary duty. This chapter examines the extent of trustees’ civil liability for breach of trust, whether there might be a valid defence to a breach of trust and whether a trustee’s liability should be reduced by some form of relief. It looks at the remedies available against trustees for a breach of trust, a claimant’s election between inconsistent remedies, comparison with common law remedies, capital repayment, interest on the judgment, the Limitation Act 1980, the doctrine of laches, the beneficiary’s instigation of or consent to the breach and the beneficiary’s acquiescence in breach.

15. Breach of trust: defences and relief

2021 ◽  
pp. 341-365
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Civil Liability ◽  
Fiduciary Duty ◽  
Legal Knowledge ◽  
General Law ◽  
Key Points

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. A trust must be duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Similarly, a trustee should be liable for a dishonest breach of trust. Not every breach of trust is deliberate or dishonest. Liability may arise due to lack of care and other inadvertent breaches of trust, and even due to an essentially ‘technical’ or ‘formal’ breach of fiduciary duty. This chapter examines the extent of trustees’ civil liability for breach of trust, whether there might be a valid defence to a breach of trust and whether a trustee’s liability should be reduced by some form of relief. It looks at the remedies available against trustees for a breach of trust, a claimant’s election between inconsistent remedies, comparison with common law remedies, capital repayment, interest on the judgment, the Limitation Act 1980, the doctrine of laches, the beneficiary’s instigation of or consent to the breach and the beneficiary’s acquiescence in breach.

19. The equitable liability of strangers to the trust

2021 ◽  
pp. 453-472
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Knowledge ◽  
Key Points ◽  
Trust Property ◽  
The Law ◽  
The Relationship

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 shows how a stranger to the trust may be threatened with personal equitable liability. It explains the rationale behind equitable liability for ‘knowing receipt’ of trust property, considers the distinction between ‘knowing receipt’ and ‘inconsistent dealing’, examines the nature of a stranger’s liability for dishonest assistance in (or procurement of) a breach of trust and looks at possible reforms of the law in this area. The chapter also discusses how liability of strangers differs from tracing, trusteeship de son tort, the four requirements for ‘dishonest assistance’ (existence of a trust, breach of the trust, assistance and dishonesty), the relationship between knowledge and dishonesty in cases of dishonest assistance and whether accessory liability should be a common law tort.

9. Employers’ liability and non-delegable duties

2018 ◽  
Author(s):  
Vera Bermingham ◽  
Carol Brennan
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

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. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

14. Investment

2019 ◽  
pp. 320-343
Author(s):  
Gary Watt
Keyword(s):  
Portfolio Theory ◽  
Capital Gains ◽  
Investment Policy ◽  
Legal Knowledge ◽  
Modern Portfolio Theory ◽  
General Law ◽  
Appropriate Care ◽  
Key Points ◽  
Investment Returns ◽  
The Impact

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. Part II of the Trustee Act 2000 gives every trustee the power to make any kind of investment as long as he is absolutely entitled to the assets of the trust, a power that permits trustees to hold investments jointly or in common with other persons. There are no unauthorised types of investment, but it is important to know whether the type of investment chosen was appropriate to the trust on the basis of the ‘standard investment criteria’. This chapter examines the types of investment permitted by the general law, a breach of the duty to invest with appropriate care, the significance of modern portfolio theory to trustee investments and the impact of the Trustee Act 2000 upon trustee investments. It also looks at the historical need for income production and discusses capital gains as investment returns, the standard investment criteria, the need for trustees to obtain and consider proper advice about investments, particular types of investment and investment policy.

5. Murder and voluntary manslaughter

2020 ◽  
pp. 99-132
Author(s):  
Nicola Monaghan
Keyword(s):  
Common Law ◽  
Mens Rea ◽  
Legal Knowledge ◽  
Loss Of Control ◽  
Bodily Harm ◽  
Grievous Bodily Harm ◽  
Key Points ◽  
Actus Reus ◽  
Partial Defences ◽  
Diminished Responsibility

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 explores the elements of murder and the partial defences which reduce a defendant’s liability to voluntary manslaughter. Murder is a common law offence that is committed when a defendant unlawfully causes the death of a person with an intention to kill or cause grievous bodily harm (GBH). Where a defendant has both the actus reus and mens rea for murder, but also has one of three special, partial defences available to him, his liability for murder is reduced to that of manslaughter (voluntary manslaughter). Loss of control, diminished responsibility, suicide pact, and infanticide are also discussed.

20. Equity: doctrines and remedies

2019 ◽  
pp. 477-506
Author(s):  
Gary Watt
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Legal Knowledge ◽  
Very Old ◽  
England And Wales ◽  
Key Points ◽  
The Common ◽  
Law Courts ◽  
Court Of Chancery ◽  
The Way

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. In general, the leading cases on equitable doctrines and remedies are very old. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied by the unified Supreme Court of England and Wales. This chapter looks at particular doctrines and remedies that have been developed over many centuries to help predict the way in which equity will operate in various types of case. It first discusses the distinction between different doctrines of equity before turning to the requirements for the various equitable remedies, the likelihood of success when applying for an equitable remedy and the on-going significance of equity to modern commercial life. The chapter also examines the doctrines of conversion, reconversion, satisfaction, performance and election, along with the discretionary nature of equitable remedies, injunctions, rescission, rectification, account and subrogation.

19. The equitable liability of strangers to the trust

2019 ◽  
pp. 457-476
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Knowledge ◽  
Key Points ◽  
Trust Property ◽  
The Law ◽  
The Relationship

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 shows how a stranger to the trust may be threatened with personal equitable liability. It explains the rationale behind equitable liability for ‘knowing receipt’ of trust property, considers the distinction between ‘knowing receipt’ and ‘inconsistent dealing’, examines the nature of a stranger’s liability for dishonest assistance in (or procurement of) a breach of trust and looks at possible reforms of the law in this area. The chapter also discusses how liability of strangers differs from tracing, trusteeship de son tort, the four requirements for ‘dishonest assistance’ (existence of a trust, breach of the trust, assistance and dishonesty), the relationship between knowledge and dishonesty in cases of dishonest assistance and whether accessory liability should be a common law tort.

14. Investment

2021 ◽  
pp. 318-340
Author(s):  
Gary Watt
Keyword(s):  
Portfolio Theory ◽  
Capital Gains ◽  
Investment Policy ◽  
Legal Knowledge ◽  
Modern Portfolio Theory ◽  
General Law ◽  
Appropriate Care ◽  
Key Points ◽  
Investment Returns ◽  
The Impact

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. Part II of the Trustee Act 2000 gives every trustee the power to make any kind of investment as long as he is absolutely entitled to the assets of the trust, a power that permits trustees to hold investments jointly or in common with other persons. There are no unauthorised types of investment, but it is important to know whether the type of investment chosen was appropriate to the trust on the basis of the ‘standard investment criteria’. This chapter examines the types of investment permitted by the general law, a breach of the duty to invest with appropriate care, the significance of modern portfolio theory to trustee investments and the impact of the Trustee Act 2000 upon trustee investments. It also looks at the historical need for income production and discusses capital gains as investment returns, the standard investment criteria, the need for trustees to obtain and consider proper advice about investments, particular types of investment and investment policy.

7. Negligence: occupiers’ liability

2020 ◽  
pp. 165-195
Author(s):  
Carol Brennan ◽  
Vera Bermingham
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Case Law ◽  
Duty Of Care ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common

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. While tort law is largely based on case law developed by judges through the common law, the liability of occupiers for the injuries suffered by those on their premises is governed by two statutes: the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The chapter explains the scope of an occupier’s liability and how it relates to other aspects of negligence, considers the duty of care owed by occupiers to lawful visitors under the Occupiers’ Liability Act 1957, discusses the duty of care owed by occupiers to trespassers under the Occupiers’ Liability Act 1984 and how it relates to the previous common law duty of care.

18. Tracing

2019 ◽  
pp. 430-456
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Knowledge ◽  
Key Points ◽  
The Common ◽  
Trust Property ◽  
Bank Accounts ◽  
Personal Liability

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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