Following
The process of pursuing the very same, unsubstituted asset as it passes from hand to hand, as opposed to tracing, which follows value through a series of substitutions.
Independent editorial summary — not the official statute text. Read the official version on legislation.gov.uk.
Following and tracing are both processes for locating property in which a claimant asserts an interest, but English law treats them as analytically distinct. Lord Millett explained the distinction in Foskett v McKeown [2001] 1 AC 102 at 127B, quoted verbatim by the High Court in D'Aloia v Persons Unknown [2024] EWHC 2342 (Ch) at [176]: following is the 'process of following the same asset as it moves from hand to hand', whereas tracing 'is the process of identifying a new asset as the substitute for the old'. Following therefore applies wherever there has been no substitution of assets, merely a change of hands - the same item of property is simply located in new hands.
The distinction matters because the rules governing tracing (historically split between common law and equitable tracing) have no application to a pure following claim - the claimant is vindicating a pre-existing property right in an asset that still exists, wherever it currently sits. The two concepts are nonetheless sometimes used loosely together: the Supreme Court in Byers v Saudi National Bank [2023] UKSC 51 at [68], set out in D'Aloia at [180], noted that 'whereas following is the process whereby the claimant locates the original asset in the hands of a stranger', both processes are commonly lumped together as 'tracing' in looser usage. Where an asset has genuinely been exchanged for another, D'Aloia records at [176] that 'a claimant can elect whether to follow the original asset in the hands of the new owner or to trace its value into the new asset' - the choice often turns on practicalities such as which asset still exists and who now holds it.
Example
A trustee steals a specific painting belonging to the trust and gives it to his brother, who in turn gives it to a friend. The beneficiary can follow that same painting into the friend's hands. Had the trustee instead sold the painting and used the proceeds to buy a car, the beneficiary would have to trace the value of the painting into the car rather than follow the (now-sold) painting itself.
Related terms
Official sources
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