Whayman D. Remodelling Knowing Receipt as a Gains-Based Wrong. Journal of Business Law 2016, 7, 565-588. Copyright: This is a pre-copyedited, author-produced version of an article accepted for publication in Journal of Business Law following peer review. The definitive published version is available online on Westlaw UK or from Thomson Reuters DocDel service. Date deposited: 12/09/2016 Embargo release date: 01 September 2017 This work is licensed under a Creative Commons Attribution-NonCommercial 3.0 Unported License Newcastle University ePrints - eprint.ncl.ac.uk Remodelling Knowing Receipt as a Gains-Based Wrong Derek Whayman*
[email protected] Newcastle Law School Newcastle University 21–24 Windsor Terrace Newcastle upon Tyne NE1 7RU Abstract This article analyses the nature of knowing receipt. It finds its previous characterisations as a form of unjust enrichment or trustee-like liability wanting in the face of newer authority and complex commercial situations. It argues that knowing receipt is a gains-based profit- disgorging wrong and this best describes its remedies. 1. Introduction The action in knowing receipt is an invaluable tool in the armoury of the claimant who wants to recover misapplied trust or company property from a stranger to the trust or fiduciary relation. It might be that the trustee or fiduciary is a man of straw or has disappeared or simply that the recipient is easier to sue. Then, provided the claimant can show that the recipient beneficially received property traceable to a breach of trust of fiduciary duty with cognisance of that breach, a personal claim exists.1 However, the precise nature of knowing receipt and particularly how this translates into the remedy available – namely quantum – is contested.