Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Tue, 2 Aug 2005 14:37:35 +0100 |
| Re: |
Two new cases |
Two important decisions on liability to account for the
profits of a breach of fiduciary duty have appeared:
Murad
v Al-Saraj [2005] EWCA Civ 959, where the CA discusses the nature
of the causal link which must be established between a fiduciary's breach
and the profits for which it is sought to make him accountable.
Ultraframe
(UK) Ltd v Fielding [2005] EWHC 1638 (Ch) a vast judgment of
Lewison J, who reviews the law on tracing, proprietary claims for breach
of trust, and the compensatory and restitutionary personal liabilities
of breaching trustees, knowing recipients and dishonest assistants. Lewison
J finds, among other things, that a dishonest assistant can be jointly
and severally liable to compensate the principal for loss caused by the
breach, and to disgorge profits which he himself makes out of his dishonest
assistance, but that he cannot be made jointly and severally liable to
pay over the amount of profits made by the fiduciary in which the assistant
has not shared, and which correspond to no loss by the principal. In Lewison
J's view this would be a punitive remedy.
CM
--
Charles Mitchell
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