| From: | Andrew Burrows <andrew.burrows@law.ox.ac.uk> |
| To: | Andrew Tettenborn <A.M.Tettenborn@swansea.ac.uk> |
| CC: | obligations@uwo.ca |
| Date: | 21/06/2011 14:36:59 UTC |
| Subject: | RE: ODG: Calculation of damages to trustee |
In Mindy’s ‘hard’ case, there seems to me to be a claim by the trustee on behalf of the trust ie for the loss to the trust/trust estate (see Chappell v Somers). It was not in dispute in the Buncefield/Colourquest case that the trustee had a claim for the damage to the pipes (held on trust) and consequent loss of use suffered by the trust/trust estate. But, in my view, the CA went off the mark when it reasoned that the trustee could recover for the particular loss of profits suffered by Shell (one of the beneficiaries under the trust). That loss of profits was not a loss suffered by the trust/trust estate and should not have been recoverable by the trustee (unless the court was willing to extend the exceptions, as in The Albazero, to when one party can recover for the loss suffered by a third party).
Best wishes,
Andy
Professor Andrew Burrows QC, FBA,
Professor of the Law of England,
All Souls College,
Oxford,
OX1 4AL
Direct line: 01865-279340
From: Andrew Tettenborn [mailto:A.M.Tettenborn@swansea.ac.uk]
Sent: 21 June 2011 15:15
Cc: obligations@uwo.ca
Subject: Re: ODG: Calculation of damages to trustee
An obvious starting-point is Chappell v Somers & Blake [2004] Ch 19, where it is held that (in effect) a personal representative can sue for the loss to the estate, despite not being personally damnified, and thought that a trustee is in the same position. Cf the position in tort (Malkins Nominees Ltd v Société Financière Mirelis SA [2004] EWHC 2631 (Ch)); and see the extended discussion in the Scotch case of Marquess of Aberdeen and Temair v Turcan Connell
[2008] CSOH 183; 2009 S.C.L.R. 336; [2009] P.N.L.R. 18.
Happy days
Andrew
On 21/06/2011 11:19, Jason Neyers wrote:
I post on behalf of Mindy Chen-Wishart:
Grateful for any thoughts on this:
a trustee (T) hires a solicitor (S) to do a job for the trust. S does it negligently, and T sues S for breach of contract. My question is, how are the damages quantified?
Assume (1) that T acted negligently in hiring S, in the sense that it was reasonably foreseeable that S would perform the job negligently (maybe the job was outside S's area of expertise). T will be in breach of trust and so liable to the beneficiary (B) for the resultant loss. This loss seems, I think, to be that occasioned by S's own breach. So it is possible to say that T suffers that loss personally, meaning that T's claim against S will naturally be for that amount. This is the easier case.
Now the harder case. Assume (2) that T did not act negligently in hiring S. T has now committed no breach of trust, so is not liable to B, so suffers no loss personally. As a result, we might expect that T's claim against S would be nominal only. But is it? Or does it yield damages quantified by reference to B's loss (which S would then hold for B)? And if so, by what reasoning? In particular, is B's trust right somehow brought into the reckoning? (Should we see the answer to this as yes on the strength of Colourquest? But again, by exactly what reasoning?)
Incidentally, I cannot see that it matters, in either case, whether B requires T to sue S (whether really, or using the Vandepitte procedure): even if so, the claim is surely still T's.
Mindy
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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School of Law, University of Swansea | Andrew Tettenborn Ysgol y Gyfraith, Prifysgol Abertawe |
Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)