Lapome Ltd v Kemp & Anor [2023] EWHC 1564 (Ch) (29 June 2023)

Lapome Ltd v Kemp & Anor [2023] EWHC 1564 (Ch) (29 June 2023)

The question of whether a tracing beneficiary can 'cherry pick' as against a wrongdoing trustee is unsettled and controversial. It should be determined on the facts as found at trial, not on the limited evidence currently before the court. The application to strike out is dismissed.

Citation
[2023] EWHC 1564 (Ch)
Parties
Claimant: Lapome Limited; First Defendant: Ross Kemp; Second Defendant: K Capital Limited
Jurisdiction
England and Wales
Judgment Date
29 June 2023
Procedural Posture
Strike Out Application in Civil Proceedings / Interlocutory (application to Strike Out Claim Before Trial)
Outcome
Application to strike out dismissed
Legal Topics
Tracing, Constructive Trusts, Breach of Fiduciary Duty, Knowing Receipt, Remedies, Proprietary Claims, Summary Judgment, Strike Out Applications
Equity Trusts Civil Procedure Tracing Constructive Trusts Breach of Fiduciary Duty Knowing Receipt Remedies +3 more

Case Brief

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Parties

Lapome Limited

Claimant

Ross Kemp

First Defendant

K Capital Limited

Second Defendant

Procedural Posture

Strike Out Application in Civil Proceedings / Interlocutory (application to Strike Out Claim Before Trial)

Legal Issues

  1. 1 Whether a beneficiary under a constructive trust can trace into property acquired from a mixed fund where the value of the fund never fell below the trust property
  2. 2 Whether the claimant can 'cherry pick' its remedy between the mixed fund and assets acquired from it
  3. 3 Whether binding authority precludes the claimant's proprietary tracing claim

Ratio Decidendi

The question of whether a tracing beneficiary can 'cherry pick' as against a wrongdoing trustee is unsettled and controversial. It should be determined on the facts as found at trial, not on the limited evidence currently before the court. The application to strike out is dismissed.

Court Disposition

Application to strike out dismissed

Orders

  • Application to strike out the claim is dismissed.