Proprietary remedies (including following and tracing)

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Proprietary remedies (including following and tracing)
  • What are proprietary remedies?
  • General principles
  • Illustration—Lipkin Gorman v Karpnale
  • Is there a proprietary interest?
  • Tracing analogy where no proprietary interest
  • What are following and tracing?
  • Common law (following and tracing)
  • In equity (following and tracing)
  • When are you unable to trace in equity?
  • More...

Proprietary remedies (including following and tracing)

What are proprietary remedies?

General principles

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 (see below).

Where 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.

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 that property and that the case is one in which the grant of a proprietary remedy is justified.

Thus, proprietary claims are those in which the claimant claims to have:

  1. a proprietary (ownership) interest

  2. in specific property

  3. which

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