Describe the differences between the common law and equitable tracing rules. Should the common law tracing rules be changed so that they are not as restrictive as today? Say no to plagiarism. Get a custom essay on “Why Violent Video Games Should Not Be Banned”?Get the original essayThe law of tracing has always been plagued by some confusion about the nature of the tracing process. We sometimes speak of a right, remedy or cause of action. More recently, it appears to have emerged that tracking is neither a right nor a remedy and does not give rise to any cause of action. Rather, it is a process of identifying the location of value as a necessary preliminary step in formulating certain claims. This helps ensure that a plaintiff's claim regarding this value is not dismissed when the defendant or a third party deals with it. This essay explores the many arguments for and against the unification of tracing rules, and considers the advantages and disadvantages of both. The arguments put forward by Lord Millett in favor of unifying the two sets of rules are particularly important, but Rimer J, opposing this, pointed out that some obstacles, for example the requirement of a fiduciary relationship, must be overcome before this can happen. We will conclude that common law and fair tracing are indeed distinct at present, and that the differences between the two must be erased before they can eventually be unified. Additionally, the fiduciary requirement should be removed in order to make tracing fair if the two sets of rules are to be unified. equity historically. Lord Greene explained the difference as a materialist approach to common law and a metaphysical approach to fairness (Re Diplock 1948). Traceability under common law regarding property and the benefits derived from it remains possible provided that the trust property or its proper substitute is separate and identifiable, i.e. it has not been mixed with other goods. In Common Law, the rules are characterized by a restrictive approach and the right to trace in common is lost once the goods are mixed. Most cases involve a claimant wishing to trace a mixed bank account, and Lord Goff, in Lipkin Gorman v Karpnale, pointed out that "at common law, property in money, like other fungible property, is lost as such when mixed with other funds.” .' Rather, equity tracing helps a beneficiary establish ownership over assets that have been commingled, which is compared to common law tracing which is much more flexible and likely to apply to real-world scenarios where diverted funds are likely to be mixed. . Equity will allow the applicant to access a mixed fund in the process whereby the beneficiary can identify a portion of the property over which they can establish a new equitable ownership interest, although there is a fiduciary requirement. Judges and commentators have expressed regret that the law had failed to develop a single system of rules for determining the existence of property claims. This was particularly expressed in the case of Jones FC & Sons v Jones 1996 by Lord Millett, who said that having two separate tracing rules at common law and in equity was of no advantage, given that tracing is not neither a remedy nor a right, but It is simply a process by which a claimant establishes what has happened to their property and asserts that the property they are claiming can be considered to represent their property. Lord Millett was convinced that in reality theThere was nothing fundamentally legal or fair about the research process. Thus, it makes no sense to have two separate rules, and the unification of these rules would be sufficient. Following Foskett v McKeown, there appears to be authoritative support for future courts to depart from the entirely historical approach which favored two sets of rules. In Foskett's case, both Millet and Hope favored a single set of tracing rules applicable in both common law and equity. Peter Birks also supports this notion of clearly separating tracing from the activity of asserting rights over successfully traced assets, and argues that the process should be seen as neutral. He characterized the identification process as neither legal nor fair, but rather neutral in terms of the duties payable in respect of the assets in which the value in question is attached. Lionel Smith even argued that the decision in Taylor v Plumer was made by a court of common law, but the rules of equity were in fact applied since the case concerned equitable rights. Lord Millett agreed, contradicting his previous thoughts in Agip v Jackson regarding the case of Taylor v Plumer. Furthermore, the Agip v Jackson decision clearly shows that common law tracing is too strict and makes it difficult to trace mixed ownership, which is in complete contrast to the flexible possibilities offered by equitable tracing. This bifurcation was therefore considered unnecessarily convoluted and confusing. On the contrary, Justice Rimer in Shalson v Russo 2003 was not convinced by Foskett's decision and established the need to identify that there is indeed a difference between common law and common law. fair tracing rules, in particular the need to identify a fiduciary equity relationship as a prerequisite for tracing to a mixed fund. Another difficulty could arise regarding the fiduciary relationship, for example when a thief steals money. Even if the victim can trace their money to equity, how can a thief be said to have a fiduciary relationship with the victim of his own crime? Traditionally, equity requires that there be a fiduciary relationship through which equity assistance can be relied upon. One must agree with Justice Rimer, and he is right that the obiter in Foskett was indeed incomplete because it did not recognize this difference. For the law on tracing to be clear and consistent, it is important to ensure that such anomalies are eliminated. Support for this can be shown through Foskett's other speeches. For example, Lord Browne-Wilkinson, although agreeing with Lord Millett, emphasized that he did not wish to discuss whether the legal and equitable rules of equity are similar or different. Furthermore, Lord Hope did not even comment, which could indicate that he was not entirely satisfied with the arguments put forward emphasizing that the two sets of rules are the same. Indeed, the difference between common law and equitable tracing has existed for a long time, Foskett has not brushed aside this long-recognized difference. Therefore, the distinction between the two sets of rules must be maintained until there is a solution to the need for a fiduciary relationship under equity as opposed to common law tracing. Following this, some case law has suggested that there may not be a fiduciary relationship under equity, as opposed to following the common law. need to establish a fiduciary relationship to enable fair tracing. In the case.