Edited by Elise Bant, Kit Barker and Simone Degeling
This chapter examines the circumstances in which proprietary restitution may be awarded, assessed by reference to the justifications for and the forms of those awards. The availability of specific relief may be highly desirable, as where the plaintiff wishes to recover a valued heirloom. And proprietary relief may have ancillary advantages, such as supporting tracing claims against remote recipients and advantages in insolvency. However, the law has yet to settle on when and why these advantages should be bestowed on the unjust enrichment plaintiff. The chapter assesses two possible styles of approach to understanding the availability of proprietary restitutionary relief: those which identify additional reasons that justify the award of proprietary restitution as an exceptional remedy, and those which find the justification for proprietary restitution innate within the existing structure of the core claim. It also examines the forms of remedy supported in the cases, dividing them into trusts, powers to re-vest rights and security interests. The chapter demonstrates that these have variously been awarded for a wide variety of unjust factors, a position that clearly may be subject to justified criticism of incoherence. The analysis does not seek to provide an answer to these issues, but rather provides a map to navigate the challenging terrain ahead. The analysis also reinforces the close connection between the nature of the remedy and that of the claim to which it responds.
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