Description
Solicitors retained to assist in the administration of an estate were instructed to sell a property within the estate and another property belonging to the administrators. A legal executive working for the solicitors also had a business as a property developer through a separate company. That company entered in to a profit sharing development agreement with the prospective purchaser of the properties being sold. None of this was disclosed to the administrators. The property was sold for £190,000 in March 1999. The administrators shortly thereafter discovered the true value of the property was £350,000. They wrote to the Office for the Supervision of Solicitors on 25 November 2000. On 5 December 2002 the legal executive sent a letter to the Claimants explaining some, but not all of the matters and providing a cheque for £6,000 for overage. Proceedings were issued in February 2009. Limitation was raised as a defence. In answer the Claimants argued that the Defendants held any secret profit on constructive trus t for Claimants and there was no limitation period by virtue of the Limitation Act 1980 s. 21 (1) (b); that the Claimants were only aware of the facts when they received the letter of 5 December 2002; and as the Defendants had deliberately concealed some of the facts until 2009 time did not start to run until then. The judge rejected the argument that the claim was for trust property. The secret profit obtained by the legal executive was not and had never been beneficially the property of the Claimants and it was not acquired by taking advantage of an opportunity or right of the Claimants - it was obtained by doing a wrong and was not money which was part of the Property subject to the legal executive's fiduciary duties. The judge also held that the findings of the Master as to knowledge were unassailable and the appeal was dismissed.
