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prepared for Equity and Trusts CPD Update Fran Wright CPD Training 2008 edition in Law ILEX CPD reference code: L31 CPD © 2008 Copyright ILEX Tutorial College Limited All materials included in this ITC publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of ILEX Tutorial College Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. ILEX Tutorial College Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2008 by: ILEX Tutorial College Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB Preface This update has been prepared by ILEX Tutorial College (ITC) to assist Fellows and Members of the Institute of Legal Executives (ILEX) in meeting their continuing professional development (CPD) or lifelong learning requirements for 2008. Fellows are required to complete 16 hours of CPD in 2008 and Members eight hours of CPD. It has been written for Fellows and Members currently practising in this area and it is assumed, therefore, that those using it have a level of knowledge equivalent to an ILEX Level 6 Professional Higher Diploma in Law pass. Each update contains information on developments in law and/or practice in 2007 and early 2008. Studying each update and completing the accompanying self-assessment test will account for four hours of CPD. Fellows and Members are entitled to two free updates a year. Details of the completion of the self-assessment test should be recorded by Fellows in their CPD logbooks using the reference code printed inside the front cover of the update. It is not necessary to return the completed self-assessment test to ILEX. All completed self-assessment tests should be retained, however, as ILEX may request their return for monitoring purposes. Any queries about completion of the self-assessment test and any other CPD issues should be made to the Membership Operations Division on 01234-845733. Contents Chapter 1: Equitable Remedies Chapter 2: Intention to Create a Trust Chapter 3: Discretionary Trusts Chapter 4: Resulting Trusts Chapter 5: Trusts of the Family Home Chapter 6: Charitable and Purpose Trusts Chapter 7: Trustees Chapter 8: The Equitable Liability of Third Parties Self-assessment Test i ii Introduction This update is not intended to be an academic study of the law. It is for those Fellows already practising in this field, and therefore assumes a level of knowledge in this subject equivalent to an ILEX Membership Examination Level 6 pass. It is advised that you do not attempt this update if you are not currently practising in this field of law. This update is provided for educational updating and tuition purposes. Decisions on legal practice should not be taken on the basis of this update, which is intended to clarify certain areas of difficulty. For further information on any of the subjects, please refer to standard reference works and sources of law. Ensure that you use the latest material, and that you are aware that other legal subjects may impinge on this one. NB All references to Rules or Parts in this update refer to the Civil Procedure Rules 1998 (CPR) unless otherwise indicated. Chapter 1: Equitable Remedies 1.1 Injunctions One of the most useful of the equitable remedies is an injunction, an order by the court to a party to do or refrain from doing a particular act. As with other equitable remedies, injunctions are discretionary, available only because common law remedies are not adequate in the circumstances. One of the situations where injunctions may be available is the protection of confidential information. Often, damages will not provide protection: the goal is to prevent the information from being used or made public. There is a useful discussion of the principles governing protection of confidential information in Crowson Fabrics v Rider [2007] EWHC 2942. Information does not become confidential simply because it is labelled confidential. There is no protection for information that is in the public domain, even if it was derived from the claimant’s documents. An ex-employee is not in breach of any duty of fidelity or fiduciary duty if he makes use of the skills and expertise he has developed through his employment. Nor can the ex-employee be prevented from using information that has been recalled through memory and skills, rather than through retention of documents or files (although it would be different if the information had been deliberately copied or memorised for use after the employment ended). Information must be in the nature of a trade secret in order to be protected post-termination. It is well-established that delay is a defence to a claim for an injunction. Most cases involving delay involve a delay by the claimant in bringing the action, but in EE & Brian Smith (1928) Ltd v Hodson [2007] EWCA Civ 1210 the delay was caused by the judge hearing the application. The appellants were appealing against the issue of an interim injunction restraining them from working in competition with their former employer. The application for the injunction had been heard a week after it was made, but judgment was reserved, with no order being made. It was a month before the judge released his decision granting an injunction, stating that the formal order would be drawn up in two weeks’ time. The judge refused to deal with representations during that period. The Court of Appeal set the injunction aside. This had not been a complex case and the delay had been too long, especially as the case had arisen during the main selling season for the business in question. The injunction was also too wide, containing restrictions not requested by the applicant, and it prevented the appellants from fulfilling orders they had accepted before the order was made. In place of the injunction, the court accepted a limited undertaking from one of the appellants. 1.2 Rectification Another equitable remedy that has been the subject of recent decisions is rectification. This is a remedy available where those who have executed a legal document realise that the document does not mean or do what they intended it to mean or do. One of the difficulties with rectification is distinguishing between cases were the parties made a mistake in the contract itself and one where they made a mistake in how the contract was recorded. Rectification is only available in the latter case. There is a useful explanation of this in Smithson v Harrison [2008] 1 All ER 1216. A claim is one for rectification if the problem with a document cannot be resolved by ignoring a clause in that document, and instead the clause needs to be changed because it does not mean what the drafters intended it to mean. “If rectification is obtainable L31 CPD © ITC 1 Equitable Remedies the court will alter the wording of a document so that it ceases to say what it had mistakenly been expressed to say and instead says the different thing that it had been intended to say: the court substitutes a correct version for the incorrect version which the party or parties had mistakenly brought into effect.” Another example of a situation that could not be corrected through rectification arose in Oun v Ahmad [2008] EWHC 545. Mr Oun and Mr Ahmad recorded the terms of an agreement they had reached for the sale of a lease to Mr Oun. A separate memorandum gave the apportionment of the price between the building, fixtures and fittings, the value of the business and (possibly) stock. This memorandum was not incorporated into the contract for sale. There was a disagreement which meant that the sale was not completed. It was conceded by both parties that the contract for the sale of the lease itself did not comply with the formal requirements of s2(1) Law of Property (Miscellaneous Provisions) Act 1989 because it did not incorporate all the terms which they had expressly agreed. Therefore, it was not enforceable. Mr Oun sought rectification of the offending document so that it recorded the additional terms of the agreement. An Adjudicator held that the non-compliance could not be cured by an order for rectification. The contract itself contained everything that the parties intended it to contain, and accurately reflected their agreement. Therefore, there was no room for rectification. Mr Oun’s appeal was unsuccessful. Morgan J discussed the principles that applied where rectification was sought unders2(4) Law of Property (Miscellaneous Provisions) Act 1989 . This expressly provides for rectification in cases where a contract is invalid because it does not incorporate all the terms expressly agreed. Morgan J concluded that rectification was not available as of right: if it was, this would undermine the objective of s2(1). The usual principles therefore applied. The situation here had arisen because the parties, having agreed terms, also expressly agreed to record only some of them in the written document. They were both unaware that this meant it would not be binding.
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