Dillon LJ, Leggatt LJ and Kennedy LJ
Westdeutsche Landesbank Girozentrale (hereinafter referred to as ‘the Bank’) entered into a ten‐year interest rate swap agreement with Islington London Borough Council…
Abstract
Westdeutsche Landesbank Girozentrale (hereinafter referred to as ‘the Bank’) entered into a ten‐year interest rate swap agreement with Islington London Borough Council (hereinafter referred to as ‘the Council’).
The law relating to tracing is complicated, littered with inconsistencies and possibly now verging on a state of disarray. The complications are ever increasing as the topic…
Abstract
The law relating to tracing is complicated, littered with inconsistencies and possibly now verging on a state of disarray. The complications are ever increasing as the topic becomes inevitably intertwined with the law relating to constructive trusts and restitution. This article concentrates on a specific aspect of the law of tracing, namely, the extent to which one can trace money paid into an overdrawn bank account.
DILLON, LEGGATT, HENRY LJJ and Joanna Gray
This case concerned an attempt by the liquidators of Bishopsgate Investment Management Ltd (BIM) the trustee of assets belonging to pension schemes for employees of Maxwell…
Abstract
This case concerned an attempt by the liquidators of Bishopsgate Investment Management Ltd (BIM) the trustee of assets belonging to pension schemes for employees of Maxwell companies to recover some of the large amounts of BIM's pension fund monies which had been improperly paid into bank accounts of Maxwell Communication Corporation PLC group companies and private sector companies owned by Maxwell, his family and trusts set up by him.
Five years ago, Junior Books v Veitchi [1983] 1 AC 520; 2/1 SS 58 was feared by professionals to be the opening salvo by the courts in an attack which would expand the scope of…
Abstract
Five years ago, Junior Books v Veitchi [1983] 1 AC 520; 2/1 SS 58 was feared by professionals to be the opening salvo by the courts in an attack which would expand the scope of tort rights at the expense of the sanctity of contractual arrangements. Since then, however, most courts have found ways of ignoring, side‐stepping or rewriting that infamous House of Lords judgment. Recent decisions by the Court of Appeal provide strong evidence that the most far‐reaching implications of Junior Books have been resisted. Indeed, it will be seen that the relationship of tort and contract may be even less favourable to Plaintiffs today than it was in the period immediately prior to that landmark.
The Committee has considered the present state of English civil law in relation to remedies available to victims of money laundering. We summarise here the relevant rules and…
Abstract
The Committee has considered the present state of English civil law in relation to remedies available to victims of money laundering. We summarise here the relevant rules and principles of English law. See ‘Summary of the current legal position’ below.
Improved creditor and community protection seemed attainable goals when Professor Daniel Prentice described s. 214 of the Insolvency Act (‘s. 214’) as ‘one of the most important…
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Improved creditor and community protection seemed attainable goals when Professor Daniel Prentice described s. 214 of the Insolvency Act (‘s. 214’) as ‘one of the most important developments in company law this century’. The profession and academics perceived that wrongful trading in its legislative form had a bright future because it promised to provide much needed protection. ‘Wrongful trading’ was introduced to minimise the abuse of limited liability by company officers. An honest director could not be liable for a company's debt despite reckless, unreasonable and cavalier business practices. Insolvency practitioners were having difficulty establishing dishonesty under the fraudulent trading provisions. The courts demanded a strict standard of proof for fraudulent trading and many cases never made it to court despite a prospect of recovery against directors. Wrongful trading by comparison is a recent development that, in theory, refines the standard of a director's duty and clarifies that conduct need not be fraudulent, illegal or unconscionable to attract legislative censure. Section 214 measures a director's conduct against a minimum standard of commercial morality and competence.
Serious fraud trials are the sum of their component parts such that examination of one particular area often repays attention. The Roskill Fraud Trials Committee's criticisms were…
Abstract
Serious fraud trials are the sum of their component parts such that examination of one particular area often repays attention. The Roskill Fraud Trials Committee's criticisms were the backdrop for the Criminal Justice Act 1987 and the enhanced investigatory powers that are to be found in s. 2 thereof. Seven years after the enactment of the 1987 Act it is apposite to examine whether in derogating from the confines of traditional criminal evidential practices a certain level of procedural and substantive fairness has been maintained. The Police and Criminal Evidence Act 1984 and its application to the rights of a suspect are also of importance. A critical examination of the above issues demands steering a careful course between normative rules and theory: in this area above all others it is impossible and undesirable to divorce one from the other.
Serious fraud trials are the sum of their component parts such that examination of one particular area often repays attention. The Roskill Fraud Trials Committee's criticisms were…
Abstract
Serious fraud trials are the sum of their component parts such that examination of one particular area often repays attention. The Roskill Fraud Trials Committee's criticisms were the backdrop for the Criminal Justice Act 1987 and the enhanced investigatory powers that are to be found in s. 2 thereof. Seven years after the enactment of the 1987 Act it is apposite to examine whether in derogating from the confines of traditional criminal evidential practices a certain level of procedural and substantive fairness has been maintained. The Police and Criminal Evidence Act 1984 (PACE) and its application to the rights of a suspect are also of importance. A critical examination of the above issues demands steering a careful course between prescriptive rules and theory: in this area above all others it is impossible and undesirable to divorce one from the other.
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Anthony Lavers and Alistair MacFarquhar
Explores judicial attitudes in professional negligence casesaffecting liability for property investment advice. Focuses on thestandard of work required to discharge the legal duty…
Abstract
Explores judicial attitudes in professional negligence cases affecting liability for property investment advice. Focuses on the standard of work required to discharge the legal duty of care and on apparent contradictions in approach by the courts. Reviews a series of cases which are taken to exhibit traditional attitudes to professional liability and studies modern cases which are irreconcilable with those attitudes. Includes liability to third party mortgagors and to third party mortgagees in an analysis of the duty of care, and considers the implications of the perceived expansion of the advisor′s professional duties, which include potential conflicts of interest and the dichotomy between the standards current among professionally qualified and unqualified practitioners. Suggests that judicial attitudes are influential in shaping the practice of property investment advice, but that this intervention is fraught with difficulties as it creates uncertainty among professional advisors about the nature of the tasks undertaken.