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Asset Tracing Asset tracing In some circumstances a beneficiary will want to recover a specific asset. Tracing as a remedy will be the preferred option as the claimant seeks to establish a proprietary right to the asset. It is important to make the distinction between tracing the asset that was previously owned and tracing a substitute property that now represents that which was previously owned. The most obvious example of this is seeking to establish title to a house that was bought from the proceeds of the sale of a house that was a trust asset. The claimant's case in the first instance will simply be to prove that the property was theirs but in the second case it will not be so straightforward as is a situation where equity has been employed. Although the term tracing is generally used and will continue to be used here, it is often more explanatory to refer to the former as 'following' and the latter as 'tracing'. The leading case helpfully explains this thus: 'The process… involves both tracing and following. These are both exercises in locating assets which are or may be taken to represent an asset belonging to the [claimants] and to which they assert ownership. The processes of following and tracing are, however, distinct. Following is the process of following the same asset as it moves from hand to hand. Tracing is the process of identifying a new asset as the substitute for the old. Where one asset is exchanged for another, a claimant can elect whether to follow the original asset into the hands of the new owner or to trace its value into the new asset in the hands of the same owner. In practice his choice is often dictated by the circumstances.' There are two forms of tracing: common law and equitable. Common law tracing The common law remedy is extremely useful but comes with limitations. If the property is identifiable then the common law approach will probably be adequate but if that property has become mixed with other property and is no longer specifically identifiable or has been substituted, the claimant may have to pursue in equity. The limitations of common law tracing can be graphically illustrated by a money laundering ploy. A fraudster receiving money will pay different sums into a number of accounts all containing funds. Those accounts will then be converted and moved to other jurisdictions. Common law tracing is thwarted and the claimant will have to trace in equity. It is useful to note that the claimant is entitled to the full value of asset in preference to creditors of the defendant in the event of that defendant's insolvency. In principle, common law does accept that the claimant has a right to trace even if the defendant has disposed of the asset for another piece of property, either by exchange or purchase. The criterion for this is that the original property must be entirely traceable even if it is now something else. The rationale between the common law and equitable approaches to questions of tracing has been explained as follows: The common law approached them in a strictly materialistic way. It could only appreciate what might almost be called the "physical" identity of one thing with another. It could treat a person's money as identifiable so long as it had not become mixed with other money. It could treat as identifiable with the money other kinds of property acquired by means of it, provided that there was no admixture of other money. It is noticeable that in this latter case the common law did not base itself on any known theory of tracing such as that adopted in equity. It proceeded on the basis that the unauthorised act of purchasing was one capable of ratification by the owner of the money… If it is possible to identify a principal's money with an asset purchased exclusively by means of it, we see no reason for drawing a distinction between a chose in action such as a banker's debt to his customer and any other asset. If the principal can ratify the acquisition of the one, we see no reason for supposing that he cannot ratify the acquisition of the other.' There are a number of cases that illustrate the application of the common law and they graphically show that the substitution principle is alive and well. It is also clear that as the principle depends on the claimant ratifying the transaction, they could equally as well not ratify and take the original property. The situation has been further amplified in case law by the statement that: Tracing at common law, unlike its counterpart in equity, is neither a cause of action nor a remedy but serves an evidential purpose. The cause of action is for money had and received. Tracing at common law enables the defendant to be identified as the recipient of the plaintiff's money and the measure of his liability to be determined by the amount of the plaintiff's money he is shown to have received.' This re-emphasises that at common law it is possible to follow a physical asset from one recipient to another and, indeed, to trace an asset into the same hands albeit in a changed form. There is the principal limitation: it cannot follow beyond the same hands. There has never been any doubt that it has been possible to trace a physical asset thus and, as Diplock states, following money into an asset purchased with it is possible and in this regard no distinction is drawn between a chose in action, such as a bank debt to its customer or an insurance policy and any other asset. The difficulty is that while the physical asset, such as a cheque or its proceeds, can be traced from one person to another, a chose in action cannot be. Thus, in practice, money can be followed at common law into and out of a bank account and in to the hands of a subsequent transferee, assuming no mixture with other funds. The Agip case is a good illustration of this albeit that the money was dealt with by transmission by telegraphic transfer, not cheque. There was an impossibility of tracing the money at common law and an impossibility of treating it as the proceeds of a cheque or payment order or other physical asset presented by the collecting bank in exchange for payment by the paying bank. It followed that the claimant's claim against the defendants for money had and received failed on the ground that no physical asset belonging to the claimant could be traced at common law to the defendants' firm. On a basic point, the common law does not recognize equitable interests in property. This means that in any event, a beneficiary under a trust could not follow at law, the property in to the hands of the trustee. Inevitably, this means that the beneficiary's only recourse is to use equity to compel the trustee to trace the property in to the hands of a stranger. Tracing in equity This aspect of tracing comes visibly into play in the more complex area of a situation where the property has passed to the defendant, who has substituted this for a different property in which the claimant has never had any proprietary rights. The claimant will pursue an equitable claim to assert title to the substitute property in place of their original property. Cases make it clear that in order to make an equitable tracing claim: 1. the claimant must have an equitable interest in the property or 2. the person giving away the property must have had a fiduciary relationship to the claimant 3. in the case of land there must be a fiduciary relationship to call in to play the equitable jurisdiction As can be seen, tracing in equity does require a fiduciary arrangement to have been established. The most obvious scenario is in the case of the trustee/beneficiary relationship. Consequently, where there is a breach of trust, there is no difficulty in a pursuit in equity. Having satisfied the appropriate criteria of the fiduciary relationship, the beneficial owner of an asset can trace it into the hands of anyone holding that asset save for a bona fide purchaser for value without notice. One area of particular concern to the common law is where funds are mixed. Even though the common law approach may fail in such a circumstance, there is a solution, as: 'Equity, so to speak, is able to draw up a balance sheet, on the right hand side of which appears the composite fund and on its left hand side the two or more funds of which it is to be deemed to be made up.' The major impediment in respect of tracing into mixed funds is in relation to a person acquiring other than for value but without notice. Obviously, if such a person does not mix, there is no difficulty but if they do mix or receive it mixed as a gift, there is a limitation. This was succinctly explained thus: '… he must admit the claim of the true owner, but is not precluded from setting up his own claim in respect of the moneys of his own which have been contributed to the mixed fund. The result is that they share pari passu. It would be inequitable for the volunteer to claim priority for the reason that he is a volunteer: it would be equally inequitable for the true owner of the money to claim priority over the volunteer, for the volunteer is innocent and cannot be said to act unconscionably if he claims equal treatment for himself.
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