Publication Type

Journal Article

Version

publishedVersion

Publication Date

12-2013

Abstract

This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of breach of fiduciary duty in law. Further, this account must however be read in light of the Court of Appeal's decision in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153 which ruled that proprietary relief is only allowed in circumstances where the breach amounts to abuse of the principal's asset. This requirement is particularly difficult to satisfy in the paradigm case of the Pallant v Morgan equity, save in the case of agency. But where there is a relationship of agency, a constructive trust will also arise in accordance with an established agency principle, resulting in duplication in results.

Discipline

Agency | Jurisprudence

Research Areas

Private Law

Publication

Legal Studies

Volume

33

Issue

4

First Page

549

Last Page

571

ISSN

1748-121X

Identifier

10.1111/j.1748-121X.2012.00265.x

Publisher

Butterworths

Additional URL

https://doi.org/10.1111/j.1748-121X.2012.00265.x

Download

Share

COinS