Wilful Default in UK Law

Leading Cases
  • Armitage v Nurse
    • Court of Appeal (Civil Division)
    • 19 Mar 1997

    First, the expression wilful default is used in the cases in two senses. A trustee is said to be accountable on the footing of wilful default when he is accountable not only for money which he has in fact received but also for money which he could with reasonable diligence have received. It is sufficient that the trustee has been guilty of a want of ordinary prudence: see, for example, Re Chapman [1896] 2 Ch. 763. Nothing less than conscious and wilful misconduct is sufficient.

    A trustee who is guilty of such conduct either consciously takes a risk that loss will result, or is recklessly indifferent whether it will or not. If the risk eventuates he is personally liable. But if he consciously takes the risk in good faith and with the best intentions, honestly believing that the risk is one which ought to be taken in the interests of the beneficiaries, there is no reason why he should not be protected by an exemption clause which excludes liability for wilful default.

    I accept the submission made on behalf of Paula that there is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts.

  • Alghussein Establishment v Eton College
    • House of Lords
    • 05 May 1988

    There was nothing in any of them to suggest that the foregoing proposition was limited to cases where the parties in breach were seeking to avoid the contract and I can see no reason for so limiting it. A party who seeks to obtain a benefit under a continuing contract on account of his breach is just as much taking advantage of his own wrong as is a party who relies on his breach to avoid a contract and thereby escape his obligations.

    Even if it were appropriate to imply the provision of clause 3(b) into any lease to be granted under the proviso to clause 4, and I make this assumption without deciding the matter one way or the other, there remains the question whether in the words of Lord Diplock in Cheall [1983] 2 A.C. 180 the agreement contains clear express provisions to contradict the presumption that it was not the intention of parties that either should be entitled to rely on his own breach in order to obtain a benefit.

  • Belmont Finance Corporation Ltd v Williams Furniture Ltd
    • Court of Appeal (Civil Division)
    • 17 Feb 1977

    An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the Rules and it is a well-recognised rule of practice. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged.

  • Lochgelly Iron and Coal Company v McMullan
    • House of Lords
    • 10 Jul 1933

    In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing: on all this the liability depends and if this liability is attached by law formally to the employer, as happens in the case of a breach of the statutory duty, the whole position is I apprehend correctly described as "personal negligence of the employer."

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Legislation
  • Income Tax Management Act 1964
    • UK Non-devolved
    • 1 de Enero de 1964
    ......in cases of fraud, wilful default or neglect), that is— .   . ( a . ) the proviso to section ......
  • Metropolitan Fire Brigade Act 1865
    • UK Non-devolved
    • 1 de Enero de 1865
    ....... 16. If any Insurance Company makes default in making such Returns to the Board as are required by this Act, it shall ... that he has incurred such Penalty by reason of the Neglect or wilful Default of any other Person, he may recover summarily from such Person the ......
  • Trustee Act 1925
    • UK Non-devolved
    • 1 de Enero de 1925
    ...... .   . ( b . ) to take any proceedings on account of any act,. default, or neglect on the part of the persons in. whom such securities or other ...happens through his own wilful default. . (2) A trustee may reimburse himself or pay or. discharge out ......
  • Income Tax Act 1952
    • UK Non-devolved
    • 1 de Enero de 1952
    ...... . (7) A clerk or clerk's assistant who— .   . ( a . ) wilfully obstructs or delays the execution of this Act;. or. .   . ( b . ) ...in due time shall be conclusive evidence of default in. making any such appointment. . (5) Where there shall be any default ......
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Books & Journal Articles
  • Making a Silk Purse out of a Pig's Ear ‐ Medforth v Blake & Ors
    • Núm. 63-3, Mayo 2000
    • The Modern Law Review
    ...... , an equitable duty of care was constructed on the basis of the ‘wilful default’ principle, a venerable feature of the law governing mortgagees ......
  • Delegation By Trustees: A Reappraisal
    • Núm. 22-4, Julio 1959
    • The Modern Law Review
    ...... only for his own acts, receipts, neglects or defaults, and not for those of any other trustee, nor for any ..., unless the same happens through his own wilful default. . . . Both this clause and section 31 of the ......
  • NOTES OF CASES
    • Núm. 23-4, Julio 1960
    • The Modern Law Review
    ...... Except when the Revenue can prove fraud or wilful default, they can only claim arrears of tax and ......
  • SOME SOCIOLOGICAL ASPECTS OF STRICT LIABILITY AND THE ENFORCEMENT OF FACTORY LEGISLATION
    • Núm. 33-4, Julio 1970
    • The Modern Law Review
    ...... punishments of the law will be employed only against wilful and obstinate offenders.” (A factory inspector’s ... be entitled to have any person to whose act or default he alleges that the contravention of the provisions in question ......
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Law Firm Commentaries
  • Commercial Contract Law: What Happened In 2016 - Thinkhouse Foundations
    • Mondaq UK
    ...... contract law over the last 12 months including key topics such as wilful default - and of course a little bit of Brexit. Mike Reed: My name is ......
  • Man Over Board: Was It Suicide?
    • Mondaq UK
    ...... the death of its employees unless, in its opinion, the loss was by "wilful default" (i.e. suicide). BP concluded that the most likely explanation for ......
  • Alliancing Thriving Post Recession
    • Mondaq UK
    ...... to this is typically in the sphere of what is referred to as wilful default. The relevant provision might look something like:. 'No failure ......
  • Exclusion of deliberate acts in insurance policies (UK)
    • LexBlog United Kingdom
    A June 2021 UK Supreme Court judgment has highlighted the difficulties insurers may face when relying on a intentional or deliberate acts exclusion. A bouncer at a pub in Aberdeen, Scotland had app...
    ...... the insurer’s “liability arising out of deliberate acts wilful default or neglect” of an employee of the insured. The insurer argued ......
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