Wednesday, July 30, 2008
Nikunj Kiri (Senior Associate, Herbert Smith, United Kingdom ) has recently posted on SSRN an article entitled Tracing Claims: Court Leaves the Door Open for the Recognition of a Discretionary Remedial Constructive .Trust
Here is the abstract of the article:
In London Allied Holdings Limited v Anthony Lee and ors, Etherton J considered whether English law should follow the US and Canadian model and use a discretionary remedial constructive trust to facilitate the assertion of a proprietary claim over the proceeds of a £1m fraud perpetrated on the claimant. Although the judge was ultimately able to sidestep this decision by finding that the circumstances of the fraud were sufficient to allow the imposition of an institutional proprietary constructive trust in accordance with recognised principles, the judge stopped short of concluding that English law would never recognise a discretionary remedial constructive trust and has, therefore, kept the debate alive.