Proprietary remedies in restitution—following and tracing
Produced in partnership with Harris Bor of 20 Essex Street
Proprietary remedies in restitution—following and tracing

The following Dispute Resolution guidance note Produced in partnership with Harris Bor of 20 Essex Street provides comprehensive and up to date legal information covering:

  • Proprietary remedies in restitution—following and tracing
  • What are proprietary claims in restitution?
  • What is required to establish a proprietary interest?
  • Proprietary remedies—following and tracing
  • Following and tracing at common law
  • Following and tracing in equity
  • When are you unable to trace in equity?
  • Tracing and chains of transactions
  • Good faith purchaser for value defeats an equitable proprietary claim
  • A right of subrogration as a proprietary remedy

A proprietary remedy is one which attaches to specific property (as opposed to a ‘personal remedy’ ie a damages claim for money). That is not to say then when considering proprietary remedies, the property in question cannot be money; it can, as seen in the leading authority on proprietary claims of Lipkin Gorman v Karpnale.

Where such a proprietary remedy is sought it is usually because the defendant themselves are either insolvent or no longer have the property. In such cases, the claimant may need to ‘follow’ and/or ‘trace’ the property in order to make recovery. How, when and against which parties a claimant can trace their misappropriated property depends on whether the claimant seeks to trace their property at common law or in equity, as discussed below.

Following and tracing claims to recover property in the hands of another are remedies most frequently seen in cases of complex fraud and may well involve consideration of constructive and resulting trusts (on which, see below).

What are proprietary claims in restitution?

Where the defendant has received property which, either at law or in equity, traceably belongs to the claimant, then a proprietary claim may follow. A claimant who wishes to bring a proprietary claim must establish not only that the defendant received property which belongs to them, but that the defendant still retains