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(B) THE NATURE OF THE RESTITUTIONARY REMEDY

The remedies which are available to claimants to enable them to vindicate proprietary rights may either be personal or proprietary, though in each case the remedy is restitutionary since it enables the claimant either to recover the value of the property or to assert a proprietary interest in the property received or its product or substitute.[1]

(i) Personal Restitutionary Remedies

The personal restitutionary remedies[2] which are available where the claimant seeks to vindicate a proprietary right include recovery of the value of money received by the defendant under the Common Law action of money had and received[3] and the equitable remedy of account of profits.[4] Where the claimant seeks a personal remedy he or she only needs to show that, when the defendant received the relevant property, the claimant had a proprietary interest in it. The fact that the defendant has dissipated the property after its receipt without acquiring a substitute does not defeat the claim, though dissipation of the property may enable the defendant to plead the defence of change of position.[5]

  • [1] See Boscawen v Bajwa [1996] 1 WLR 328, 334 (Millett LJ). 2 See p 641, below.
  • [2] 10 As occurred in Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548.
  • [3] 11 See p 424, above. 5 See Chapter 25. 13 See p 632, below.
  • [4] 14 Whether the claimant can assert a proprietary right against a product of or substitute for the claimant’s
  • [5] original property depends upon the application of the tracing rules. See p 607, below.
 
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