(iv) Distinguishing Between Tracing and Claiming

The decision in Foskett v McKeown is also important because of the clear distinction which was drawn between tracing and claiming. The purpose of tracing is to see whether a link can be established between the original asset and the substitute property. Sometimes tracing has been regarded as a remedy in its own right,[1] [2] but that is patently incorrect. As Lord Steyn said, it is ‘a process of identifying assets: it belongs to the law of evidence. It tells us nothing about legal or equitable rights to the assets traced’.3 0 So, in Foskett the function of the tracing rules was only to identify a link to the death benefit, so that the claimant had a proprietary interest in it. It was then necessary to make a claim to that property and determine how the proprietary interest could be vindicated. This is the claiming exercise and it was this which proved to be the key issue in the case, namely whether a lien or a proportionate share was the most appropriate remedy for vindicating the claimant’s proprietary interest.[3] In many cases the appropriate remedy will be a matter for the claimant to choose,[4] but this will depend on both remedies being available to the claimant as a matter of law.

  • [1] See Sinclair v Brougham [1914] AC 398.
  • [2] Foskett v McKeown [2001] 1 AC 102, 113, citing PBH Birks, ‘The Necessity of a Unitary Law of Tracing’in R Cranston (ed), Making Commercial Law, Essays in Honour of Roy Goode (Oxford: Oxford UniversityPress, 1997), 239. See also Foskett v McKeown, 109 (Lord Browne-Wilkinson) and 128 and 139 (Lord Millett).Confusingly, despite earlier recognizing the distinction between tracing and claiming, Lord Millett consideredthe question of claiming under the heading of ‘The tracing rules’: ibid, 129-33.
  • [3] See p 632, below. 382 Foskett v McKeown [2001] 1 AC 102, 130 (Lord Millett).
  • [4] 383 Re Diplock’s Estate [1948] Ch 465, 5 1 8 -21. 384 Ibid.
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