格伦·v沃森[2018] EWHC 2483 (Ch)
Once a trustee is found to be in default of his obligations, how is the beneficiary to be properly compensated and what interest ought to be paid? Nugee J recently considered this question in格伦·v沃森[2018] EWHC 2483 (Ch) finding that there was little authoritative guidance. Rather his Lordship considered the court’s approach should be a ‘broad brush’ one and he relied upon industry data to find a rate of interest appropriate to the return an investing trustee would have obtained. The case is of interest for those involved in asset recovery because Nugee J applied his reasoning by analogy to a wrongdoer who held the victim’s money as a constructive trustee.
Background
判断本身从纽约议员对埃克·沃森的行动爵士的初期决定（格伦伏沃森[2018] EWHC 2016（CH））。案件以欺骗和贿赂的指控为中心，当持有欧文爵士的投资车辆的投资车辆，投资于与沃森先生称为“项目斯巴达”的合资企业。Nugee J发现，KEA已被呼吁进入合资企业，并通过沃特森先生违反信托义务或由于沃特森先生给出的非法诱因，提供欺诈性歪曲129米的资金。
Crucially for present purposes, Nugee J also found (at para 540(5) of the first judgment) that, Spartan was a constructive trustee of Kea’s money and Kea was entitled to claim back the £129million on that basis. The advantage of this was that Kea would be able to claim interest not just under s.35A of the Senior Courts Act 1981 but under the Court’s equitable jurisdiction.
清除地面
The bulk of the decision centres on the rate of interest applicable. Before considering that, however, his Lordship held:
- 虽然他已经审议了对他的第一次判决的适当感兴趣率是什么，但它仍然适合从沃森先生的律师审理争论，这些律师在听证会上的正确计算基础上（[9] - [10]）。
- 律师之间没有争议，兴趣每年应复合（[11]）。
- 至关重要的是，正确的类比作为确定速度的基础是违约受托人的情况，'范式的情况下被where a beneficiary sued a trustee for loss to the trust fund’ ([12]). This was on the basis that Kea was an investment vehicle for trust monies, Kea had transferred £129m of those trust monies to Spartan as a result of deceit thereby rendering Spartan a constructive trustee of those monies, and had those monies not been so transferred they would have been invested by the trustee in suitable investments ([50]). Mr Watson did not ‘认为这是错误的原则’.
What was the appropriate rate?
Nugee J接受了欧文爵士的提交，可以将兴趣与违约受托人授予A'convenient substitute for an account of actual profits'（[21]）或赔偿受益人所做的回报（[22]）。这基本上是以“投资基础”授予利息的论点。这是纽约州九年的一定逻辑，因为受托人的义务是为了投资受益者的利益，而他们未能这样做，“natural way to measure that is to award a figure that represents the rate of return that would have been made’ ([24]). That was the explanation for the traditional 4% interest applied and there was some historical evidence of this serving as a proxy for return on trust investments ([25]).
然而，沃森先生的律师认为，适当的税率应该是“借贷率”（即近似于替代货币损失的费用），并且在当局提供了这一命题的支持。然而，这些案件有关公司的损失损失索赔，并不一定能够阅读违约受托人的情况（[33]）。事实上，nugee j认为它是'完全不切实际的是假设传统的信托基金会借用’ ([46]). Nor did his Lordship consider a “deposit rate”, ie the rate of return in a bank account, appropriate.
As a matter of precedent and principle, therefore, a ‘rate based on suitable investment return’ ought to be adopted ([47]). Following judgment at trial, Sir Owen’s lawyers had produced detailed evidence as to the sorts of return that would have been made by the trust fund had it not been deceived. This had stemmed from data produced annually by ARC and STEP showing the rates of return for trust funds with varying levels of investment risk. Nugee J found the material to be ‘objective and of a high quality and a good indication of real-world investment returns’ ([14]-[17]). Relying on that evidence, his Lordship held he should – within the ‘broad brush’ discretion afforded to him – adopt a middle path and chose a rate that struck ‘a balance between caution and risk’. The consistency between the ARC and STEP figures supported reliance upon the data. Doing so, and erring on the side of caution, a rate of 6.5% was deemed appropriate ([52]-[54]).
讨论
This is an interesting, and welcome, review of the authorities applicable to defaulting trustees. The importance of the case, and the underlying principles, is highlighted by the fact that the difference in the interest rates being sought by Sir Owen and Mr Watson had a value of £20million. Moreover, the case emphasises the significance both of giving careful thought to the sorts of remedy sought (eg one based on trustee default or a close analogy) so as to engage the broad equitable discretion and the need for concrete evidence of the sorts of investment returns available to the size of trust fund in question. Nugee J was clearly impressed by the ARC and STEP materials, which are the product of voluntary anonymised reporting by trust professionals. These could well take on increased significance following this judgment and defendants’ lawyers should pay careful attention to their reliability and suitability to the particular fund in question.
Gregor Hogan
Serle Court., Lincoln’s Inn
©2018年11月21日