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Two first instance decisions from 2003 in which important matters were decided with no discussion whatsoever by the judges concerned:

1/ In Williams v Williams [2003] All ER (D) 403 (Feb), at [54], Kevin Garnett QC held that statements in Goff & Jones that there is a general defence of change of position available to good faith defendants to claims in UE 'have nothing to do with the case of a gift which is void for want of capacity'. Is it not at least arguable that a defendant who changes his position after receiving a gift in good faith from a mentally incapable claimant should have a defence?

2/ In Law Society v Haider [2003] EWHC 2486 (Ch), at [40]-[41], David J Richards QC held that the Law Society, acting on behalf of clients whose funds had been misappropriated from a solicitor's client account and used to redeem a mortgage on real property, could trace into the property and then onto into the money realized when the property was sold and then on into new property bought with the money, to which it could then assert a proprietary claim. The first of these steps looks like backwards tracing to me, which I take to have been accepted into English law by the CA in Foskett, but doubts remain - e.g. what is the status of Scott V-C's view in Foskett that the beneficiaries would have to prove that the trustee meant to use their money to repay the bank at the time when his account became overdrawn?

A Happy New Year to all RDG members!

Charles

Dr Charles Mitchell
Reader in Law
Director of Postgraduate Taught Programmes
School of Law
King's College London
Strand
London WC2R 2LS

tel: 020 7848 2290
fax: 020 7848 2465