Overseas Chambers of Peter Harris

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UK Supreme Court's judgment in Akers v. Samba [2017] UKSC 6

May 16th 2017

The Supreme Court's lengthy but interesting judgment in  Akers and others (Respondents) v. Samba Financial Group (Appellant) [2017] UKSC 6 can be read in full at the Resources Page.

It contains a highly informative overview of the perceived but false "dichotomy" between what might be described as a proprietary school and the personal remedy school of thought, as it places each facet of the trust concept within the context of its application.

It is simply not enough for certain civilian lawyers and legislators to dismiss the trust as a mere "contrat", as the Supreme Court ably demonstrates.  Cleansing the civilian stables of such misconceptions is almost acheived by the Supreme Court in this judgment, were the occupants to take notice of it.

The concept of a trust being engrafted or impressed upon a property right in a civil law country, which otherwise does not recognise it, is placed within the context of the enforcement against the "trustee", and under the limitation of "Equity's darling" or blue eyed boy (per Professor Julian Farrand QC) , the bona fide purchaser for value without notice.  Whilst that might excuse certain, but certainly not all,  civilian liberties with the  trust concept, The UKSA's judgment denies any absolution to the French administration's attempt to treat it exclusively as a contract, which a trust most certainly is not.

Perhaps my Parisian confrères might like to bring those sinners to the secular confessionnal, at some point, before Mr Lieb in part responsible for the inadequate drafting of article 792-0 bis I CGI during his spell at the DGI does any more damage in New York.

I will update this post in an incremental manner in that it is relevant to the recognition of trusts generally abroad, and the judgment is of consequence in relation to trusts or remedies in Continental jurisdictions.