FOLLOWING AND TRACING

Once the claimant can establish that he or she has retained a legal interest in property or that an equitable interest can be recognized, it is then necessary for the claimant to identify a proprietary interest in the property which had been received by the defendant. To establish this the claimant will need to rely on the following and tracing rules.

(A) THE FUNCTION OF FOLLOWING AND TRACING

(i) The Essence of Following

The essence of following is that the claimant is able to show that the actual property in which he or she has a proprietary interest has been received by the defendant.[1] If the identity of the claimant’s property has been lost or the property has been destroyed, the claimant will no longer be able to follow it. Where the claimant transfers the property directly to the defendant there is no difficulty in following the property. Where, however, the property is received indirectly by the defendant the question of following may be more difficult. It is for this reason that particular rules have been formulated which assist the claimant to follow his or her property into the defendant’s hands.[2]

  • [1] Foskett v McKeown [2001] 1 AC 102, 127 (Lord Millett). See Smith, The Law of Tracing, 4.
  • [2] See p 613, below. 3 Foskett v McKeown [2001] 1 AC 102, 128 (Lord Millett).
 
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