KEIR CAMPBELL CUNNINGHAM McCORMACK AGAINST SCOTT CAMPBELL McKINNON AND OTHERS [2023] ScotCS CSOH_70 (13 October 2023)

KEIR CAMPBELL CUNNINGHAM McCORMACK AGAINST SCOTT CAMPBELL McKINNON AND OTHERS [2023] ScotCS CSOH_70 (13 October 2023)

The first defender breached his fiduciary duties as trustee by misappropriating trust funds for personal benefit, failing to invest trust funds, failing to keep proper accounts, and failing to act in the pursuer's interests as beneficiary. He is personally liable to account for the loss, including the investment return that would have accrued had the funds been properly invested.

Citation
[2023] ScotCS CSOH_70
Parties
Pursuer: Keir Campbell Cunningham McCormack; First Defender: Scott Campbell McKinnon; Second Defender: John Lynch; Third Defender: Graeme Hunter; Fourth Defender: Margaret McDonald Robertson McKinlay as Executrix of the late Douglas Fraser McKinlay
Jurisdiction
Scotland
Judgment Date
13 October 2023
Procedural Posture
Civil Trusts (count, Reckoning and Payment) / Judgment After Hearing on Objections to Accounts and Answers
Outcome
Decree granted for payment by the first defender to the pursuer of sums representing the loss to the trusts, with interest; decree for payment of cash balance due; all questions of expenses reserved.
Legal Topics
Breach of Fiduciary Duty, Trustee Accounting, Misappropriation of Trust Funds, Investment Duties of Trustees, Remedies for Breach of Trust
Trusts and Estates Fiduciary Law Scottish Private Law Breach of Fiduciary Duty Trustee Accounting Misappropriation of Trust Funds Investment Duties of Trustees Remedies for Breach of Trust

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Parties

Keir Campbell Cunningham McCormack

Pursuer

Scott Campbell McKinnon

First Defender

John Lynch

Second Defender

Graeme Hunter

Third Defender

Margaret McDonald Robertson McKinlay as Executrix of the late Douglas Fraser McKinlay

Fourth Defender

Procedural Posture

Civil Trusts (count, Reckoning and Payment) / Judgment After Hearing on Objections to Accounts and Answers

Legal Issues

  1. 1 Whether the first defender breached fiduciary duties as trustee
  2. 2 Whether trust funds were misappropriated by the first defender
  3. 3 Whether proper accounts were rendered by the first defender

Ratio Decidendi

The first defender breached his fiduciary duties as trustee by misappropriating trust funds for personal benefit, failing to invest trust funds, failing to keep proper accounts, and failing to act in the pursuer's interests as beneficiary. He is personally liable to account for the loss, including the investment return that would have accrued had the funds been properly invested.

Court Disposition

Decree granted for payment by the first defender to the pursuer of sums representing the loss to the trusts, with interest; decree for payment of cash balance due; all questions of expenses reserved.

Orders

  • Decree for payment by the first defender to the pursuer of £138,036.47 (John McKinnon trust) with interest at 8% per annum from judgment date until payment.
  • Decree for payment by the first defender to the pursuer of £581,604.93 (Helen McKinnon trust) with interest at 8% per annum from judgment date until payment.