Wilful Default in UK Law

Leading Cases
  • Armitage v Nurse
    • Court of Appeal (Civil Division)
    • 19 March 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.

  • Deutsche Bank AG v Sebastian Holdings Inc.
    • Queen's Bench Division (Commercial Court)
    • 08 November 2013

    It is SHI's case that it was DBAG's breaches of contract which led to the close out and the termination of the Agreements, including the FX ISDA which was only terminated recently. It is also SHI's case that DBAG's terminations were wrongful. Breaches were alleged of the FXPBA, which refers to the FX ISDA, of the FX ISDA itself, of the Equities PBA and the Equities ISDA (as well as the oral agreements and the Listed F&O Agreement).

  • Lochgelly Iron and Coal Company v McMullan
    • House of Lords
    • 10 July 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
  • Petty Sessions (Ireland) Act 1851
    • UK Non-devolved
    • January 01, 1851
    ...... in case it shall appear that such Clerk shall have committed any wilful Default or Neglect in preparing or in transmitting the same, or shall have ......
  • Sale of Food (Weights and Measures) Act 1926
    • UK Non-devolved
    • January 01, 1926
    ......offence in question without his consent, connivance or. wilful default, the said other person shall be summarily. convicted of the ......
  • Carriage of Goods by Road Act 1965
    • UK Non-devolved
    • January 01, 1965
    ...... or which shift the burden of proof if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law ......
  • Trustee Act 1893
    • UK Non-devolved
    • January 01, 1893
    ...... and accountable only for his own acts, receipts, neglects, or defaults, and not for those of any other trustee, nor for any banker, broker, or ..., nor for any other loss, unless the same happens through his own wilful default; and may reimburse himself, or pay or discharge out of the trust ......
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Books & Journal Articles
  • Making a Silk Purse out of a Pig's Ear ‐ Medforth v Blake & Ors
    • Nbr. 63-3, May 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
    • Nbr. 22-4, July 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
    • Nbr. 23-4, July 1960
    • The Modern Law Review
    ...... Except when the Revenue can prove fraud or wilful default, they can only claim arrears of tax and ......
  • Money Payments Act (continued for front page)
    • Nbr. 2-2, October 1935
    • Probation Journal
    ...... parties; and thus help the Court to decide how far a default in payment has been due to wilful default or culpable neglect, ......
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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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Forms
  • Chapter PAYE62025
    • HMRC Guidance manuals
    • Formularios de Derecho Civil, Mercantil y Registral
    • HM Revenue & Customs
    ......Always report the case to PAYE Audit Group if you suspect fraud or wilful default. See the Employment Status Manual (ESM) about the need to ......
  • Chapter EM8810
    • HMRC Guidance manuals
    • Formularios de Derecho Civil, Mercantil y Registral
    ...... the Revenue had not discharged the onus of establishing fraud and wilful default, and that there was no evidence that the capital statement ......
  • Chapter EM8805
    • HMRC Guidance manuals
    • Formularios de Derecho Civil, Mercantil y Registral
    ...... were determined by the General Commissioners, who made a finding of wilful default. In the High Court and the Court of Appeal the counsel for the ......
  • Chapter CG16410
    • HMRC Guidance manuals
    • Formularios de Derecho Civil, Mercantil y Registral
    ...... will not be conclusive if it is shown that any form of fraud or wilful default committed by or on behalf of any of the persons above contributed ......
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