What are the advantages of a proprietary claim in equity?

What is a personal claim?
2. What is a proprietary claim?
3. What are the advantages of a proprietary claim in equity?
4. What are the prerequisites for a claim to equitable proprietary tracing? Is there consistency of opinion as to the necessary requirements?
5. Is there an underlying policy to the principles and rules of equitable proprietary tracing and, if so, what is it?
Question nine over the page
2008/2009 examination question:
“Equity lawyers habitually use the expressions ‘the tracing claim’ and ‘the tracing remedy’ to describe the proprietary claim and the proprietary remedy which equity makes available to the beneficial owner who seeks to recover his property in specie from those into whose hands it has come. Tracing properly so-called, however, is neither a claim nor a remedy but a process… It is the process by which the plaintiff traces what has happened to his property, identifies the persons who have handled or received it, and justifies his claim that the money which they handled or received (and, if necessary, which they still retain) can properly be regarded as representing his property.
In such a case the defendant will either challenge the plaintiff’s claim that the property in question represents his property (i.e. he will challenge the validity of the tracing exercise) or he will raise a priority dispute (e.g. by claiming to be a bona fide purchaser without notice). If all else fails he will raise the defence of innocent, change of position.” (Millett LJ in Boscawen v Bajwa [1996] 1 WLR 328, [1995] 4 All ER 769 at 776)
From your knowledge of proprietary claims in equity critically evaluate the comments made by Millett LJ.
2012/2013 examination question:
Harry is the sole trustee of certain assets settled on trust for Lydia. At the time of the settlement, the trust assets comprised £40,000 and a collection of vintage cars.
Harry was a keen supporter of Rostrevor Rugby Club, an amateur team which was struggling in the Hertfordshire league. Harry decided to raise some funds to help the club develop its recruitment and coaching programme. Contrary to the terms of the trust instrument, he sold the collection of vintage cars to Louis for £60,000. Harry gave this money to the club treasurer who lodged it to the club’s current account, which immediately before the transfer showed a credit balance of £20,000. The next day the officers of the club withdrew £40,000 from the account and cleared a secured loan which had been used to pay the costs of constructing a new stand at the rugby ground.
Harry also wanted to buy shares in the rugby club. He had savings in a deposit account totalling £20,000, but he decided this was not enough. Contrary to the terms of the trust he transferred £20,000 of the trust fund to his deposit account. The next day he paid £30,000 for shares in the club. As a result of the purchase he also received a £5,000 “share registration bonus”, which he received in cash, and immediately spent on rare collectors’ memorabilia at the club store. Later that week he won £4000 in the lottery and he placed the money in his deposit account.
Last month, the club reached the final of a prestigious international cup competition, and Harry travelled to support the team. The day before the final, in breach of trust he transferred £2,000 of the trust fund to his current account, which immediately before the transfer showed a credit balance of £300. Harry spent £300 from this account on match memorabilia, including £20 on a programme for the cup final. The day after the final, he used the remaining £2,000 balance to pay his bill at a luxury hotel.
Unfortunately for Harry, the club was thrashed 40-nil in the final by Warrenpoint Utd. It was the largest defeat in the history of the competition. Consequently shares in Rostrevor Rugby Club have decreased in value by 50%, but programmes from the historic match are selling for upwards of £400 on an online auction website.
Advise Lydia on what potential actions she might take to recover her property.
Workshop 9.Liability of Strangers
Cases to read:
– Royal Brunei Airlines v Tan [1995] 2 AC 378 (PC)
– Twinsectra Ltd v Yardley [2002] 2 AC 164
– Barlow Clowes International Ltd (In Liquidation) v Eurotrust International Ltd [2006] 1 WLR 1476
Textbook reading:
– Davies & Virgo, Equity & Trusts, Chapter 19.
Article to read:
– Robert Hunter, ‘The honest truth about dishonesty’[2002] Private Client Business 390
– Lord Nicholls, ‘Knowing Receipt: The Need for a New Landmark’ in W Cornish et al(eds),Restitution Past, Present and Future (Oxford Hart 1998), at p238
Questions:
1. What are the claims which might be made against a stranger to the trust? Outline the requirements for each cause of action to be established.
2. In relation to dishonest assistance, how have the courts grappled with the concept of “dishonesty”?
3. Do you agree with Lord Nicholls’ view of liability for knowing receipt as expressed in his paper?
4. “The law relating to knowing assistance/accessory liability has at least developed, albeit through tectonic shifts, towards a coherent concept of liability based on dishonesty, even if the application of that test has at times proved difficult in practice .… Such coherence is utterly lacking in the case law dealing with knowing receipt.” (John Breslin, ‘Unbundling Constructive Trusteeship’, in Liber Memorialis: Professor James C. Brady (Round Hall, 2001), pp. 94-114, at p. 104.
Do you agree? Give reasons for your answer. In light of cases decided after Twinsectra, do you consider that the defendant solicitor, Leach, should in fact have been held liable as an accessory to breach of trust?
5. “…it is the fact that large-scale commercial fraud has become a growth industry that makes it imperative for the law to make intelligible and efficient its weapons of restitution.” (Birks, ‘The Recovery of Misapplied Assets’, in, McKendrick (ed), Commercial Aspects of Trusts and Fiduciary Obligations (OUP 1992), at page 150).
Critically evaluate this statement by reference to the modern law of the liability of strangers and whether it has responded appropriately to the growth in large-scale commercial fraud.
Workshop 10.Charities
Case to read:
– The Independent Schools Council v The Charity Commission and others [2011] UKUT 421 (TCC)
– Dingle v Turner [1972] 2 WLR 523
– Oppenheim v Tobacco Securities Trust Co. Ltd [1951] AC 297
Textbook reading:
– Davies & Virgo, Equity & Trusts, Chapter 5.
Questions:
1. What is the legal definition of a charity?
2. Explain how charitable status was established under the old law (ie, the law which operated before 2006).
3. What was the rationale for reforming charities law?
4. Explain the principal changes effected to charities law by the Charities Act 2006.
5. Critically assess whether, and if so to what extent, the reform of charities law impacted on the old law of charities.
6. What is the status of the public benefit guidance issued by the Charity Commission?
7. How does the public benefit guidance relate to the old law of the public benefit?
8. Critically assess the impact of the decision of the Upper Tribunal Tax and Chancery Chamber in the case of The Independent Schools Council v The Charity Commission and others on the public benefit guidance.
Past examination questions over the page

2012/2013 examination questions:
By his will Thurston, formally a professor of Law at the Old University, left the following gifts:
(i) £2 million to establish a fund for the children of employees and ex-employees of Old University who wished to study Law at the Old University; and
(ii) £50,000 to promote the sport of basketball among Methodist Church Youth Groups in Hertfordshire;
(iii) £20,000 to the Fleetville Housing Action Group. The Group provided help towards the cost of accommodation for any graduate undertaking an unpaid legal internship in Greater London. The Fleetville Housing Action Group was wound up before Thurston’s death but its work is now carried on by the Marshalswick Housing Action Group.
The executors seek your advice as to whether the gifts are charitable and as to what they should do with the money given to Fleetville Housing Action Group.
‘The public benefit requirement for charities has undergone a number of changes as a result of the enactment of the Charities Act 2006 (now consolidated into the Charities Act 2011). One such change arises out of the statutory duty of the Charity Commission to provide guidance on public benefit. There are, however, serious concerns about this guidance’.
In the light of the above statement, discuss critically the requirement of public benefit.
(a) Tilda died in September 2012. Her will, dated 2000, contained the following bequest: “I bequeath the sum of £25,000 to Blackhall Library”. The library, which had been supported entirely by members’ subscriptions, donations and legacies, closed in October 2012. Advise her executors. Would your answer be any different if the Blackhall Library had merged in 2010 with the Belfast Readers’ Circle (an educational charity), to form the Blackhall Free Library and Readers’ Society, which remains open?
(b) Tilda also left £2,000 each to the Sweet Chariot Gospel Hall and the Rock of Ages Gospel Hall. The Rock of Ages Gospel Hall ceased to exist two years before her death. Advise her executors.
(c) Max and Noreen are trustees of a charity established in the late 1940s, the Belfast Fresh Air Fund, which was set up by a local linen mill owner to provide holidays for the children of Belfast mill-workers. The fund now stands at £31,375, but no payments have been made out of the fund for over 20 years. Advise Max and Noreen.