Equity and Offshore
- Module Code:
- Unit value:
- Year of study:
- Year 3 of 3 or Year 4 of 4
- Taught in:
- Full Year
The emphasis in 'Equity & Offshore' is on studying present day practice, both in the Chancery Division of the High Court, and in the courts of the UK's overseas dependent territories. .The central concept is the Trust, a triangular legal institution which developed uniquely in England , but has spread halfway through the world. Much of the world’s wealth passes through structures that utilise the Trust alongside the Company. Offshore is where much of this takes place. We start by describing how the trust, and the Court of Chancery which looks after Trusts, came to what they are now. Two-thirds of the module looks at the contemporary Law of Trusts, dealing with Certainties, Formality, Constitution, select duties of Trustees, Fiduriary Duties, the Barnes v Addy action, select Equitable Remedies, and select Resulting Trusts. We conclude by looking at Offshore, and the attempts that Onshore has made to regulate it.
Objectives and learning outcomes of the module
At the end of the module, a student should be able to :
- Actively analyse reported decisions of the Chancery Division, especially those on the law of Trusts.
- Grasp the impact of the Trustees Act, the Charities Act and the Money Laundering Regulations.
- Master the main features of Offshore Trust legislation.
- Internalise the rudiments of structuring in finance and private client business.
- Acquire a knowledge of how trusts are taxed, and how the courts regulate abusive tax avoidance schemes.
- Apply the law of trusts generally to the facts of specific problem cases.
- Debate Offshore both theoretically and ethically.
- Move closer to an Equity practice, or to research in the field.
Method of assessment
80% unseen examination, 20% coursework (two essays of 2000 words, each worth 10%)
Equity is a core CPE law subject, and a case law subject. Therefore the reading list is chiefly a list of cases decided by Chancery. Though we read some classic 17th and 19th century cases, our main focus will be on cases decided during the last decade. Not all of these have been printed. Students are expected to read transcripts of unreported Chancery cases via Westlaw and Lexis. My lecture notes give short notes of all the cases on the reading list. When students revise their chosen topics, they must read academic case-notes and journal articles, as well as the full case reports on relevant cases. The Equity portion of the syllabus is well served for textbooks in the thirty pound and in the ten pound range. The recommended textbook for 2011-12 is
- Graham Moffat 'Trusts Law: Text and Materials' 5th Edition [Cambridge U.P. 2009]
For Offshore, recommended books include:
- Palen, Murphy & Chavagneux 2010 'Tax Havens - how globalisation really works'
- Nicholas Shaxson 2011 'Treasure Islands. Tax havens and the men who stole the world'
Xavier Harel 2010 'La grande évasion - le vrai scandale des paradis fiscaux'
- Conveyancer - the main academic journal relevant to Equity - is available in SOAS library in print, as well as online. So are Law Quarterly Review, Cambridge Law Journal and Modern Law Review. Only available online are British Tax Review, Trust Law International and Private Client Business. I shall refer to a few other online sources, particular reports of quangos such as the Charity Commissioners and the Financial Action Task Force.
Here is a selection of recent journal articles, chapters in edited works, and online resources
- J.D. Davies 2004 `Integrity of Trusteeship' Law Quarterly Review 120:1-7
- Richard Nolan 2008 'Shopping for defendants: worthless trust companies and their directors' Cambridge Law Journal 472
- Matthew Hutton 2006 'The Hastings Bass principle: HMRC's interpretation' Private Client Business 5:293
- N.C. Nolan 2009 'Controlling fiduciary power' Cambridge Law Journal 68:293-323
- Francis Barlow 2009 'Breakspear v Ackland: the other issue' Private Client Business
- Gerwyn Griffiths 2008 'An inevitable tension? The disclosure of letters of wishes' Conveyancer 2008:322-328
- Robert Flannigan 2008 'The (fiduciary) duty of fidelity' Law Quarterly Review 124:347 350
- Rebecca Lee 2009 'Rethinking the content of the fiduciary obligation' Conveyancer 3:236-253
- Jeffrey Simser 2010 'Asset recovery and kleptocracy' Journal of Financial Crime 2010 321-32
- Simon Gardner 2009 'Moment of truth for knowing receipt?' Law Quarterly Review 2009:21-
- Paul Davies 2010 'Turning back the clock' Conveyancer 2010 282-99
- Lord Templeman 2001 'Tax and the Taxpayer' Law Quarterly Review 117:575 588
- Lord Walker 2004 'Ramsay 25 years on' LQR 120:412-27
- John Tiley 2004 'Tax Avoidance jurisprudence as normal law' British Tax Review 2004:304-331
- Edwin Simpson 2004 'The Ramsay principle: a curious incident' BTR 2004:358-374
- Judith Freedman 2007 'Interpreting tax statutes: the intention of Parliament' LQR
- Bowler & Gammie 2009 'Countering Tax avoidance which way?' BTR 2009:325-7
- David Hayton 2008 'A review of current trust law issues' Trust Law International
- Paul Matthews 2004 'Trust Law' in Philip Bailhache 2004 800 years of Channel Islands' Law (St Heliers: Jersey Law Review Ltd)
- Louis De Koker 2009 'FATF guidelines & low risk of money laundering' Journal of Financial Crime 2009:334-49
- Jonathan Fisher 2010 'The anti-money laundering disclosure regime' British Tax Review 2010:235
- Patrick O'Hagan 2009 'Foundations and Trusts' Trust Law International 2009:80-88
- Tsun Hang Tey 2009 'Settlor's reserved powers' Trust Law International 2009:183-199
- Christopher McKenzie 2007 'Having and eating the cake: a global survey of settlor reserved power trusts: Part 1 + 2' Private Client Business 2007 p339, p428
- Filippo Noseda 2008 'The Trusts (Guernsey) Law 2007 and other modern trust laws: a civilian perspective' Trust Law International 2008:117, p120
- Michael Foot 2009 'The Review of British offshore financial centres' October 2009 [online]
- Rose Marie Belle Antoine 2007 'The offshore trust: a catalyst for development' Journal of Financial Crime, p272
- Paul Matthews 2007 'The sham trust argument, and how to avoid it' Trust Law International 21:191 201;
- Matthew Conaglen 2008 'Sham trusts' Cambridge Law Journal 67:176 207
- Jeffrey Hackney 2008 'Charities and public benefit' LQR 124:347