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Law of Tracing

            
             B's may be able to trace the value of their trust property into bank accounts and into assets which have been bought. Tracing is not strictly a remedy - it is a process which leads to the ultimate remedy. Detective work. .
             TRACING AT COMMON LAW.
             * Results in a personal claim against person holding, or who has held, the property that is being traced. .
             * Only possible where P has received trust property and property exists in an identifiable form i.e. the trust property can be identified as the product or substitute for the original property. .
             * Claim is not defeated by fact that property was no longer held. .
             Examples (from Agip v Jackson).
             a) Trustees use trust money to purchase £10,000 shares = clear transactional link = exchange product' = traceable.
             b) Trustee puts money into 1 bank account which transfers it to another - money remains in an identifiable form = tracing permitted.
             c) Transfer of trust money through telegraphic transfer = common law tracing fails - involves passing of electrons - not possible to identify £10,000 between the transfer.
             d) P pays out money in anticipation of receiving it = delivery risk' - impossible to identify money - tracing not possible.
             Defences to the Restitutionary Claim .
             If defences are made out then property holder will not have to make full restitution. .
             Lipkin Gorman v Karpnale - solicitor gambled firm's money at Playboy Club casino - Firm claimed club was liable as constructive trustee for knowing receipt of money. Held that club was entitled to pay a sum net of winnings which it had paid out - by paying winnings, the club had altered its position in good faith. 2 defences:.
             1. Consideration provided for the money - could be a defence in an appropriate case - because a contract for gambling services could not be treated as legal consideration - so club unjustly enriched.
             2. Change of position - casino had altered its finances in good faith by paying winnings to the solicitor.


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