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LAW2039 Equity And Trusts

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LAW2039 Equity And Trusts

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Course Code: LAW2039
University: University Of Glasgow

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Country: United Kingdom

Question
1. Eva and Herman are getting married in the stylish Adelphi Hotel in California. They are famous film stars that promote clean living and monogamous living. They have done a deal with ‘Goodbye’ Magazine to sell exclusive coverage of the wedding reception. The British publication ‘Oh Wow’ a celebrity magazine published in London decides to send Julian their rookie reporter in disguise as a cake decorator to the reception. He sneaks in on the day of the wedding with a secret camera and is able to get access to the reception where he takes a photograph of Eva kissing the best man Enrique. This photograph is sent to the London office and is published that evening in the latest edition of ‘Oh Wow’.
 
Advise Eva and Herman as to the possible interim relief that they may be able to take out against Oh Wow magazine in London.
 
2. Will’s software business is in trouble, and the crisis has spurred him to think of the moral debt he owes a number of people.Will becomes concerned about all the customers who have paid money to his company, Doors Ltd, for software that has not been shipped to the warehouses. He wants this money to be returned to the customers, should Doors Ltd go into liquidation, and asks the company accountant to place all pre-shipment order money in a separate bank account called ‘Pre-shipment Customer Safety Account’.
 
Further, Will becomes worried that the shareholders of Doors Ltd will receive nothing this year and so wishes to provide substantial sum of money to be paid out to these shareholders. He believes that he can transfer £4, 000,000 from his personal wealth to Doors Ltd on the basis that it should be used to pay the dividend – but that if Doors Ltd should go into liquidation before declaring the dividend, then the money should return to Will’s personal assets and not go to Doors Ltd.
 
Will has lunch with his old friend Steve Whitby, from whom Will says he learned everything he knows about software. He says to Steve: ‘My personal wealth comes from the knowledge that you taught me – from now on my wealth is your wealth too’. At the end of their lunch meeting, Will gives Steve four of his bank cards and writes down all the PIN numbers for him.
 
Advise Will on the viability of his plans for Doors Ltd, and as to any implications of his lunch with Steve.

Answer
Issues in the case
Eva and Herman are wedding couples, who are promoting clean and monogamous leaving. Goodbye magazine has won the exclusive contracts to take photographs in the wedding reception of the two couples. However, a twist takes place when unauthorized photographer from another magazine house leaks pictures to their main office in London.  The pictures are published by the Oh wow magazine. The couples require advise on whether they can apply for interim interlocutory injunction from the courts preventing the Oh wow magazine from further publishing of the pictures and holding them responsible for any further economic problems caused by the leaked picture. This is so that they pay for the same.
Advise of the case
Positives of the case
The senior courts ACT 1981 states that the high court and any courts above it, is awarded the authority and freewill to order or give an injunction in all court cases that the court sees it just and convenient to do so. With such support of the ACT, it is easier for the couples to appeal against the actions of the Oh wow magazine in claiming that they have broken equity and trust rules. The couples are therefore free to apply for interim injunction preventing further publication of the wedding photographs. The Goodbye magazine can also appeal on the basis that Oh wow magazine breaks the trust of exclusive contract that was awarded to them. The underlying rule however based on this ACT, is that the jurisdiction of the final decision remains for the court to decide.
Following this ACT, the best way to advise the couples is considering court decision on such past cases. Considering past cases will help on getting the best advice since, there are no definite rules of Equity and Trust that can be used to decide this case.
American Cyanamid Company vs Ethicon limited
The issue in the case was based on the primary extent on the claim for granting interim injunction. House of  lords using the same case set out details and guidelines regarding how the courts are to deal with the grant of interim injunctions in general.
The following rules were then set out that can be compared with the case at hand to help in making decision if the couples will be granted an interim injunction.
Firstly, the court held that there should be conflicting evidence in respect of the interim application. The matter should be even evidence for trial. In the American Cyanide case, the considered evidence was the rule of practice by the two companies. They considered that the rule was so well established that they won’t order any interim injunction. Further evidence, however presented in the court of appeal led them to rule in favor of the American Cyanide. With reference to the Eva and Herman case, there is enough evidence to consider trial and interim injunction. The Oh wow magazine do not have the rights to publish the photographs. That is the reason why, Julian the one who took the wedding photograph sneaked in as a cake decorator. Through this virtue we can evidently conclude that there is evident enough to put the case to interim injunction. The goodbye magazine has the audacity to seek judgement since they had a 400000 deal with Eva and Herman. The moment the photograph was published the deal affected the existing trust between the two. Following such consideration, it is right to put the deal between the two away.
Mosley vs News group newspaper
Secondly, the court should consider if there is enough damage on the contract so that the claimant can be granted an injunction. The court assures that in case there are visible damages then the court grants an injunction. Mosley company was granted injunction vs the News group newspaper company had destroyed a deal worth billions which the News Group company had to pay for. In the case of Eva and Herman the deal struck between the goodbye magazine is therefore at jeopardy since the leak of the photos. The damage is issue enough to ask for remedy through interim action. The important issue for remedy is also reputation. The two couples are also film stars that promote monogamous and health living.  Through the leak of this photo, they have not only lost the financial deal but also reputation. The two is reason enough for the court to decide remedy through interim injunction which should be paid for by the Oh wow magazine.
Heeling sports limited and another vs youngsters and other
Thirdly is the consideration of the court regarding the availability of damages for either sides so that a balance is struck. In this case when the court determines that there is an even balance, they maintain a status quo. On the case of Heeling Sports limited and another vs youngsters and other was considered during the appeal of youngsters in the court of appeal. Their appeal was allowed after consideration of the damages caused affecting both parties. The judge rules that the damage created prevented abuse of the youngsters therefore creating a balance between the company and the individuals.  In the case of Eva and Herman, the balance of convenience lay with the Oh wow magazine, their reasons for such fishy behavior has to be established before considering if there is need for striking balance and maintaining a status quo. Through evaluation, it is evident that there is no need to maintain status quo while denying interim action since the Oh wow magazine journalist Julian did her action in a sneaky manner. From the sneaking part to the wrong publication of the magazine the next day in the morning.
Douglas vs Hello
The Douglas vs Hello case is important in considering the breach of privacy and confidentiality that is evident enough to grant interim injunction to Eva and Herman. The case of Douglas vs Hello is almost the same to the one being faced by Eva and Herman. Douglas and his wedding made a deal with the OK magazine which would take exclusivity for the photograph deal. The couple were later surprised when Hello magazine published the wedding magazine. The deal with the Ok magazine was worth a million euros. Douglas sued Hello for the same.
During the judgement, the judge in charge Brooke L.J. ruled that there were three important considerations of breach of confidentiality that have to be considered. In their ruling they stated, the following.
There has to be obligation of confidence. The obligation of confidence was retained as right of privacy in the remaining photographs in regard to Hello’s case. In the case of Eva and Herman, the two are known film stars, who have a reputation to protect. The published photos have been used to destroy the two-people’s reputation, this might affect their career. This is therefore an obligation of confidentiality.
Secondly, the judge proved that confidentiality can only be breached during private occasion. The Douglas wedding took place in a private venue in plaza hotel, New York. Through this fact the judges ruled that there was invasion of privacy. In the case of Eva and Herman, the have organized a guest only wedding in a private hotel named Adelphi in California. With this consideration, it is certain that there is invasion in privacy by Julian. The invasion of privacy can further be proven through her actions of sneaking in as a cake decorator.
Thirdly, the prospective claimants have to make it clear that the photographic pictures are not to be taken during the wedding. The Douglas case had this prospects except that judge Brooke ruled that the couple did not except total privacy in a wedding with 250 guests and more. Eva and Herman had people searched at the entrance for cameras and that’s why Julian had to sneak in a picture, as a cake decorator. However, considering the number of guests in the wedding it will be difficult to determine if the case was invasion of privacy.
Cambridge vs British Broadcasting Corporation
During the case of Cambridge vs BBC an important perspective to be considered in the case of the two judgements might have come-up. According to the lead judge in the case interim injunction against BBC was denied because it was the role of the media company to report news however good or bad. Considering the case of Eva and Herman, the two are celebrity film stars advocating for healthy and monogamous living, it is assumed that anything they do should revolve around such. The picture by the Oh Wow magazine is therefore an eye-opener to the people and therefore might deny the two couples an interim injunction.
Plan 1: money returned to the customers through starting a new account called pre-shipment customer safety account.
While assessing if the actions by Will is viable, it is important to consider previous cases where such decisions were made and how they affected the respective parties that were involved. Then, it would be easy to determine which decision is the best and how it shall have influenced or affected the viability of the decision by Will.
Firstly, is the case of Barclays Bank Limited vs Quite close investment. Where the Rolls Razor limited sought loan from the Quit Close investment for the purpose of paying dividends to the company. The company had gone into involuntary liquidation and the bank where the loaned amount was deposited which was Barclays Bank was sued by the Quit Close investment for not returning the amount to them as loaners but giving it to the customers of-which the account was opened for. The Quit Close company was claiming the money in the account. It is the same dilemma that Will is facing with his Doors limited.
During the case of the Barclays vs Quit Close company, the judge who presided over the case judge Wilberforce during his ruling held that there existed a decision of trust. Decision of trust according to the judge was created by mutual obligation. The mutual obligation was reached when a new account was created by the Rolls Razor company. Creating of a new account for a known purpose gives the essence of bargain between the two. He continued to hold that the Rolls Razor company therefore becomes a trustee before gaining its unintentional liquidation. In such a case therefore the company becomes a lender loan benefit of the received amount through mutual benefit.
Applying the same concepts on Will and Doors limited to derive viability, the plan might work in favor of Will. If only he will open a fixed account for his company’s debtors and accounts, then the amount will be ready enough to be paid to the customers. It will be held in trust for the same purpose that the account was opened.
The second case Re-Kayford 1975 case further determined that another important thing to determine is the certainty of intention. Even during when the Kayford limited was undergoing bankruptcy the initially opened account has to remain and serve the purpose for which it was opened.  If the company is so certain about their intention, then the account is held for what it is supposed to do. Certainty in this case is gained through how the customers are the beneficiaries of the amount and not any other stakeholders. In Wills case the beneficiaries are the customers in case there is liquidation, it goes without saying that the customers will benefit from the account.
During the Barclays vs Quit Close case, the judge introduced the term subject matter. Subject matter is the reason why the trust has to be completed. The subject matter is normally recorded at the time of opening of the account. The Rolls Razor company feared that they might undergo bankruptcy, which they under-went finally. It is for this same purpose that the Door limited is seeking funding. Having met this conditions, the Door limited and Will is free to seek loan for a fixed customer account, that will help his customers in case the company undergoes insolvency. The judge stress on account naming during the latter case, makes Wills plan viable on naming the account customer fixed deposit account.
Plan 2: Using the amount from his own wealth to pay the shareholders dividends before it will be returned to him afterwards
In the second plan by Will might derive if its viable from the judgement given during the Twinsectra vs Yardley and others. The court was to determine honest behavior of Mr. Yardley by using a borrowed amount for the purpose it wasn’t meant for. However, the two actions helped the company Twinsectra company which was supposed to use it for growth of the company instead Yardley used it to pay the debtors of the company and other shareholders.
Therefore, still in the case of Twinsectra vs Yardley and other, judge Hoffman claimed that ones the plan is not achieved; it is prudent that the amount be returned to the creditor in its whole or the amount that is remaining after the purpose has not been achieved like it was meant. With the judgement of Hoffman, the plan by Will sounds valid. Door limited will give back 400000 to Will, if the purpose that it was meant was not achieved.
Lord Millet in his judgement of the Juliet Bellis and co vs Challinor and others, had the opinion that trust in such a case can be mirrored in four approaches. The lender, the borrower, the purpose and the no one. The lender has to lend knowing the purpose of why he is doing so.  The borrower has to specify the reasons for him doing the same. The purpose is the reason behind the whole transaction and finally the no one. A no one is the beneficiary who remains in suspense in case there is an amount that remains. According to Lord Millet, his judgement claims that according to English laws in case of any remaining amounts, the amount has to go back to the borrower and not the lender. The money is for the borrower until the purpose for which it is taken is fulfilled. It is for this reason that the amount becomes a property of trust. He even refers to this section as specific trust. Specific trust in this case makes the plan by Will quite invalid. In case the amount doesn’t serve the purpose that Will has borrowed it for it becomes unviable. The amount will not be returned to Will personal accounts or wealth like he has proposed but will remain part of the assets of the Doors Limited. At this point the plan by Will is no longer viable.
Implication of Wills lunch with Steve
The meeting of Will and Steve is a determination of trust that comes through declaration by the word of mouth. Use of declaratives during conversations in more than one occasions can be a decision to determine trust. With reference to the case of Paul vs Constance, where the judge was supposed to rule on the rightful owner of an account which was initially owned by the deceased. In his ruling the judge ruled that since the deceased had severally declared in his conversation that they shared the account with Ms. Paul. She was the rightful owner of the account. The judge used the exact declaratives words as “this money is as much as yours as it is mine.” This exact statement are declaratives that create trust. Will has used almost similar words with Steve he says, “my wealth is your wealth too.” Such declaration is word enough for justification if trust between the two parties. Steve can therefore claim all the wealth owned by Will.
A similar judgement of Rowe vs Prance, the judge introduced the aspect of being a trustee as a contributor. He relayed that if one has to claim ownership or has to claim being a trustee to a certain account, he has to contribute an equal share to that account. Steve can therefore only claim ownership of Will wealth, if he has contributed to Will’s wealth.
Taking note Will recognize that everything he knows about computers was taught to him by Steve which is the cause of the judgement and ruling in Adams vs Kensington Vestry. The basis of this judgement revolves around the assumption that the latter will do the right things when disposed with similar responsibilities as the ones that Will had.
Considering such implications, Will might lose his wealth to Steve following their lunch time meeting. However, the judgement of the Bieber vs Tether Limited case has an advantage to Will, where he might not lose his properties. The judge declared that a binding relationship has to be struck within the two parties for a trust to be struck. It is for this reason that the Teather company had to pay the settlement amount. Will therefore has not struck a binding partnership relationship with Steve.
Reference
Bellido, J. ed., 2017. Landmark Cases in Intellectual Property Law. Bloomsbury Publishing. Pp 213-215
Bundock, M., 2018. Shipping law handbook. Informa Law from Routledge, p 211-213
Chan, A., 2015. The Tree That was Not Meant to Be-The Quistclose Trust Moving on from the
Chen, S.Y., Wu, W.C., Chang, C.S., Lin, C.T., Kung, J.Y., Weng, H.C., Lin, Y.T. and Lee, S.I., 2015. Organizational justice, trust, and identification and their effects on organizational commitment in hospital nursing staff. BMC health services research, 15(1), p.363.
Clarke, R., 2017. The Quistclose Trust-A Welcome Facilitator of Corporate Rescue. Nottingham LJ, 26, p.130.
Cranston, R., 2018. Principles of banking law. Oxford University Press, p 134
Cremers, K., Gaessler, F., Harhoff, D., Helmers, C. and Lefouili, Y., 2016. Invalid but infringed? An analysis of the bifurcated patent litigation system. Journal of Economic Behavior & Organization, 131, pp.218-242.
En, N.K.J., 2017. Once More unto the Breach: The Quistclose Trust Revisited. Oxford U. Undergraduate LJ, p.56.
Garton, J., Moffat, G., Bean, G. and Probert, R., 2015. Moffat’s Trusts Law 6th Edition: Text and Materials. Cambridge University Press, p 138
Gullifer, L. and Payne, J., 2015. Corporate finance law: principles and policy. Bloomsbury Publishing, p. 112
Herring, J., 2015. Beginning Family Law. Routledge. Pg.  129
Hudson, A., 2016. Understanding equity & trusts. Routledge, p 127
Hudson, E., 2017. A Normative Approach to the Quistclose Trust. The Modern Law Review, 80(5), pp.775-811.
Stockwell, N., 2005. Trusts and Equity. Pearson Education UK.pg 112-123.
Richardson, M. and Ricketson, S. eds., 2017. Research Handbook on Intellectual Property in Media and Entertainment. Edward Elgar Publishing, p 211
Riches, J., 2014. Optimize Equity and Trusts. Routledge.pg 112-113
Shelton IV, F.E., Harris, J.L., Bakos, G.J. and Baxter III, C.O., Ethicon LLC, 2018. Surgical fastener. U.S. Patent Application 29/569,218.
Twinsectra Model and Why It May Never Be An Established Transactional Arrangement. HKJ Legal Stud., 9, p.1.
Virgo, G., 2018. The Principles of Equity & Trusts. Oxford university press, p 217
Wilson, S., 2015. Todd & Wilson’s Textbook on Trusts & Equity. Oxford University Press, USA. Pp 211-213

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