Thanks, Lionel. It seems to me that the question whether a BFP defence can be raised against a proprietary claim and the question whether a defendant is liable for KR are different questions and that Lord Sumption is wrong to say that the same test should be used to answer them. See Megarry V-C in Re Montagu's ST [1987] Ch. 264 at 272–273, affirmed in Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437 at 452. Best wishes, Charles

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From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Lionel Smith, Prof. <lionel.smith@MCGILL.CA>
Sent: 15 July 2015 11:11
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: [RDG] PC tracing case

 

I don't think anyone has mentioned Credit Agricole Corporation and Investment Bank v Papadimitriou [2015] UKPC 13, [2015] 2 All ER 974, from Gibraltar, which is at http://www.bailii.org/uk/cases/UKPC/2015/13.html and was decided on 24 March.

The defendant bank received the proceeds of sale of a collection of furniture that had been owned by the plaintiff, and it was held that it was subject to a proprietary claim over those proceeds.  The main legal issue was the shape of the defence of bona fide purchase. The majority of the Board reviewed a number of statements in recent cases and concluded that ([20]): "The bank must make inquiries if there is a serious possibility of a third party having such a right [that is, a proprietary right] or, put in another way, if the facts known to the bank would give a reasonable banker in the position of the particular banker serious cause to question the propriety of the transaction."

The defence was denied to the bank, largely on the basis that the transaction appeared to have no obvious commercial purpose and it should have investigated this.

Lord Sumption agreed with the majority and added ([33]): "Whether a person claims to be a bona fide purchaser of assets without notice of a prior interest in them, or disputes a claim to make him accountable as a constructive trustee on the footing of knowing receipt, the question what constitutes notice or knowledge is the same. … Ultimately there is little to be gained from a fine analysis of the precise turns of phrase which judges have employed in answering these questions. … If even without inquiry or explanation the transaction appears to be a proper one, then there is no justification for requiring the defendants to make inquiries. He is without notice. But if there are features of the transaction such that if left unexplained they are indicative of wrongdoing, then an explanation must be sought before it can be assumed that there is none." [sic, should be "one"?]

One thing seems interesting to me: so far as I understand the case, the plaintiff was the legal owner of the furniture (in fact the plaintiff had died during the proceedings but we are told ([7]) that nothing turns on this). The person who sold the furniture had been in possession of it with the knowledge and consent of the owner. If (which is never stated clearly) the plaintiff's proprietary interest in the proceeds was by way of a trust, then this seems to be a case in which a legal owner is able to assert a trust interest in the proceeds of an unauthorized disposition of the property in question, without any reference to any need for a fiduciary relationship.

Which, personally, I think is a Good Thing.

Lionel

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This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.