Some news and views from UK academia and practice on the law, policy and practice of insolvency
Thursday, 16 December 2010
IP v.s IP and Trusts v.s Insolvency - Green v Bramston & Ors  EWHC 3106 (Ch) (02 December 2010)
His Honour Judge David Cooke has handed down his decision in Green v Bramston & Ors  EWHC 3106 (Ch) (02 December 2010). The case makes for very interesting reading as it involves not only a dispute between two IPs but also a discussion of how the law of insolvency and the law of trusts inter-relate. The case also contains a consideration of the Berkeley Applegate jurisdiction (named after the case of Re Berkeley Applegate (Investment Consultants) Ltd  1 Ch 32.) The principle was described in the following passage from the judgment of Mr Edward Nugee QC in that case, beginning at page 50:
" the authorities establish, in my judgment, a general principle that where a person seeks to enforce a claim to an equitable interest in property, the court has a discretion to require as a condition of giving effect to that equitable interest that an allowance be made for costs incurred and for skill and labour expended in connection with the administration of the property. It is a discretion which will be sparingly exercised; but factors which will operate in favour of its being exercised include the fact that, if the work had not been done by the person to whom the allowance is sought to be made, it would have had to be done either by the person entitled to the equitable interest … or by a receiver appointed by the court whose fees would have been borne by the trust property … ; and the fact that the work has been of substantial benefit to the trust property and to the persons interested in it in equity …"