Knowing receipt refers to the personal liability of non-trustees for losses arising to trusts. Liability arises where the non-trustee receives trust property, or continues to hold trust property, in the knowledge that it is in breach of trust or breach of fiduciary duty.
A claim for knowing receipt is often pursued in the context of wider fraudulent or wrongful behaviour. It is therefore common for a claim in knowing receipt to be brought alongside a number of other heads of claim, such as misappropriate of funds and unjust enrichment, and also for criminal action to be pursued. Often the wrongdoers seek to put the assets out of reach of the claimant and, therefore, methods such as asset tracing are used in order to follow the assets (or their traceable proceeds) through multiple sets of hands.
Generally speaking, a claim in knowing receipt will usually be brought by the beneficiaries of a defaulting trustee or other fiduciary. However, this is not always the case. It is possible for trustees to bring claims on behalf of beneficiaries for knowing receipt, even though it was their breach which led to the misappropriation of the assets.
The requirements for bringing a claim in knowing receipt are found in two Court of Appeal Judgments, El Ajou v Dollar Land Holdings Plc and Bank of Credit and Commerce International (Overseas) Ltd v Akindele. A claimant must be able to show:
It is not necessary for a claimant to establish that the defendant has been dishonest. But, it will often be the case that the knowing receipt will have been dishonest given the very nature of the claim.
If a claimant is able to establish the above elements, then the defendant will be held personally liable as if they were a trustee. The claimant then has a choice as to whether to pursue the defendant for the value of the assets received, together with any profits, or the loss which the claimant has suffered as a consequence of the misappropriation of the said assets. Typically, a claimant would seek the former where the value of the assets has increased or substantial profits have been obtained, but the latter if the assets have been dissipated in an unprofitable manner.
The defendant’s liability will either be personal or proprietary. To put it another way, the claimant will have a claim against the defendant in their personal capacity for compensation and/or an account of profits, or alternatively, a claim over the assets or their substitutes.