Outline the differences between the common law and equity tracing rules. Should common law traceability rules be changed so that they are not as restrictive as the current ones? Say no to plagiarism. Get a tailor-made essay on "Why Violent Video Games Shouldn't Be Banned"? Get an original essay Tracing law has historically been fraught with confusion about the nature of the tracing process. It is sometimes called 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 to making certain claims. This helps ensure that a claimant's claim to that value is not rejected when the defendant or a third party deals with it. This essay explores the many arguments for and against unifying tracking rules and considers the advantages and disadvantages of both. Particularly important are the arguments put forward by Lord Millett in support of the unification of the two rules, but Rimer J, arguing against this, highlighted that certain obstacles, for example the requirement of a fiduciary relationship, must be overcome before this can happen. It will be concluded that common law and fair tracing are currently distinct and that the differences between the two must be erased before they can be unified. Furthermore, the fiduciary requirement would need to be removed to make tracking fair if both sets of rules were to be unified. Differences in Common Law and Equity The main reason for two sets of rules for tracking is mainly the distinction of rules in common law and equity historically equity. Lord Greene explained the difference as a materialist common law approach and a metaphysical approach according to equity (Re Diplock 1948). Traceability under common law of assets and any profits derived from them remains possible provided that the trust assets or their net substitute are separate and identifiable, i.e. they have not been commingled with other assets. In common law the rules are characterized by a restrictive approach and the right of common traceability is lost once the goods are mixed. Most cases involve a claimant wishing to trace a mixed bank account and Lord Goff, in the case of Lipkin Gorman v Karpnale, pointed out that "at common law, ownership of money, as of other fungible goods, is lost as such when it is mixed with other money". .' In contrast, tracing in equity assists a beneficiary in creating an ownership interest in property that has been commingled, which is compared to common law tracing much more flexible and likely to apply to real-world scenarios where the misappropriated funds are commingled. . The equity will allow the applicant to access a blended fund in the process through which the beneficiary can identify some of the property over which they can establish a new equitable ownership interest, although there is a fiduciary requirement. Judges and commentators expressed regret that the law had failed to develop a single system of rules for determining the availability of property rights. This was expressed notably in the case of Jones FC & Sons v Jones 1996 by Lord Millett, who stated that having two distinct rules of traceability in common law and in equity was of no advantage, given that traceability is not a remedy nor a right, but simply a process through thewhere a claimant ascertains what has happened to his property and states that the assets he claims can be considered to represent his property. Lord Millett was convinced that there was in fact nothing inherently legal or fair about the tracing process. Therefore, it makes no sense to have two separate rules, and unification of these rules would be sufficient. After Foskett v McKeown, there appears to be authoritative support for future courts to depart from the fully historical approach which was in favor of two sets of rules. In Foskett's case, both Millet and Hope argued for a single set of tracing rules applicable to both common law and equity. Peter Birks also supports this notion which allows traceability to be clearly separated from the activity of enforcing rights in relation to successfully traced goods and argues that the process should be considered neutral. He labeled the identification process as neither legal nor fair, but rather neutral with respect to the rights enforceable with respect to the assets in which the value in question is traced. Lionel Smith also argued that the decision in Taylor v Plumer was decided by a common law court, but the rules of equity were in fact applied as the case involved equitable rights. Lord Millett agreed, contradicting his earlier thoughts in Agip v Jackson regarding Taylor v Plumer. Furthermore, the decision in Agip v Jackson makes it clear that common law tracing is too harsh and makes tracing in mixed ownership difficult, which is entirely at odds with the flexible possibilities offered by equitable tracing. This bifurcation was therefore considered unnecessarily convoluted and confusing. In contrast, Rimer J in Shalson v Russo 2003 was not persuaded by the Foskett decision, and established the need to identify that there is indeed a difference between common law and common law. fair tracking rules, in particular the need to identify an asset fiduciary relationship as a precondition for tracking in a mixed fund. A further difficulty could arise in relation to the fiduciary relationship, for example with a thief who steals money. Although the victim can trace his money under equity, how can a thief be said to have a fiduciary relationship with the victim of his own crime? Traditionally equity has required the existence of a fiduciary relationship whereby equity's assistance can be invoked. One must agree with Rimer J, and he is right that the obiter in Foskett was effectively incomplete for not recognizing this difference. For the law on traceability to be clear and consistent it is important to ensure that such anomalies are eliminated. Support for this can be indicated through Foskett's other interventions. Lord Browne-Wilkinson, for example, while agreeing with Lord Millett, stressed that he did not want to discuss whether the legal and equitable rules of fairness are similar or different. Furthermore, Lord Hope did not make a single comment, which may be indicative that he was not entirely satisfied with the arguments made highlighting that both sets of rules are the same. Indeed, the difference between common law and fair tracking has existed for a long time, and Foskett has not swept away this long-recognized difference. Therefore, the distinction between the two systems will have to be maintained until the need for an equitable fiduciary relationship as opposed to that of common law is resolved. Following this, some jurisprudence has hinted at the fact that there may not be a need to establish a fiduciary relationship in order to allow fair tracing. In the case of Agip,.