DELETE TEXT ACCOMPANYING NOTE 32

ADD NEW PARAGRAPH TO SECTION HEADED "(3) EXCEPTIONS":

There is an important qualification to what is meant by a " trustee" from whom the claimant seeks to recover the trust property or its proceeds.  It does not apply to a person who becomes a so-called "constructive trustee" merely because he is liable to account for his fraud or some other breach of equitable duty.   So a defendant who is liable as a constructive trustee for dishonest assistance in another person's breach of trust does not remain indefinitely liable to the claimant.  It makes no difference whether the primary breach of trust was committed fraudulently or not.  He can take advantage of the general limitation period, which is typically six years. [Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] 2 All E.R. 1086; but cf Statek Corporation v Alford [2008] EWHC 32 (Ch), [2008] B.C.C. 266 where it was said, obiter, that liability for dishonest assistance should not be subject to a limitation period, at least perhaps where the primary breach of trust was committed fraudulently. See Mitchell [2008] Conv 226.] The kind of trustee whose liability remains indefinite is one who held the relevant property qua trustee before he committed the breach of legal duty for which the claimant sues.  The trustee's liability is indefinite since he is treated as having possession of the property on the beneficiary's behalf both before and after he commits the breach of trust. [Paragon Finance v D.B. Thakerer & Co Ltd [1999] 1 All E.R. 400; Halton International Holdings SARL v Guernoy Ltd [2006] EWCA Civ 801.]

ADD AFTER TEXT ACCOMPANYING NOTE 52: The beneficiary cannot be expected to risk litigation in respect of damage to a future interest which he may never live to enjoy. [Cattley v Pollard [2006] EWHC 3130 (Ch), [2007] 2 All E.R. 1086]  The possibility of a beneficary having property appointed to him under a discretionary trust does not postpone the running of time until he in fact receives the property.  He has until then no future interest in the trust.  If, however, his right is under a contingent interest, time will not run against him until the interest vests. [Johns v Johns [2004] NZCA 42; [2005] W.T.L.R. 529. ] 

ADD TO NOTE 32: The defence of laches remains available even though the trustee's liability is not subject to any statutory period of limitation: Re Loftus (deceased) [2006] EWCA Civ 1124, [2007] 1 W.L.R. 591.

ADD TO NOTE 54: Paragon Finance v D.B. Thakerer & Co Ltd [1999] 1 All E.R. 400, 418 per  Millett L.J.