Recent Developments in Tracing and Unjust Enrichment

The talk considers three recent appellate cases which establish an important change of approach to the requirements for tracing and unjust enrichment. In Relfo v Varsani, the Court of Appeal allowed for the first time a claimant to trace “backwards” and recover funds transferred to the defendant before the fraud had taken place. This relaxation of the rules for tracing was confirmed by the Privy Council in Brazil v Durant. In Bank of Cyprus v Menelaou, the Supreme Court made an analogous development in the law of unjust enrichment, holding that a direct transfer of funds was not necessary to establish liability. These decisions are of considerable practical relevance, given the difficulty for claimants in “following the money” in international fraud claims and enforcement proceedings.