Restitution Discussion Group Archives
| Sender: |
Joshua Getzler |
| Date: |
Thu, 1 Aug 2002 11:30:31 +0100 |
| Re: |
Fraud, dishonesty, wilful default |
A chaser to Charles' latest contribution, for those of
us not shivering on a wet English beach:
There is a new case (5 July 2002) exploring the dishonesty
element in breach of trust, Woodland-Ferrari
v UCL Group Retirement Benefits Scheme [2002] 3 All ER 670; EWHC 1354
(ChD) per Ferris J.
The case concerns the continuing liability of a discharged
bankrupt for fraudulent breaches of trust under s 281(3) of the Insolvency
Act 1986. Ferris J traverses 19th and 20th century authorities and attempts
to reconcile the morass of judicial experimentation from Re Vickery through
to Armitage v Nurse, Walker v Stones and Twinsectra.
The 'dishonesty' element wins out against an amorphous 'unconscionability'
standard in finding 'fraud'; but this dishonesty standard is stated emphatically
not to be subjective. Interestingly, 'wilful default' is held to be a
narrower category than 'fraudulent breach of trust'.
Will Law Commission-led legislation finally be necessary
to resolve this debate over the nature of fraud in breach of trust? Though
it is hardly to be hoped that legislative drafters will do better than
judges.
Joshua Getzler
St Hugh's College, Oxford
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
