Quiet Fiduciary Thesis

The ‘Quiet Fiduciary Thesis’

Talk given by By Carl Islam, Barrister TEP, 1 Essex Court (www.ihtbar.com) at Guildford Country Club 12.11.2018.

• Introduction
• Approach of the court
• Hallmarks
• Scope and content
• Equitable remedies
• Quiet Fiduciary Thesis
• Commercial and contractual context

Introduction

I am arguing that a claim for fraudulent calumny can be brought on the grounds of breach of fiduciary duty where a fiduciary has been silent – which I call the ‘Quiet fiduciary thesis’.

In developing this argument I will address four subsidiary issues:

• the approach of the court;
• the hallmarks of a fiduciary;
• the scope and content of fiduciary duties; and
• the equitable remedies available to the claimant (‘C’) which result,
(the ‘fiduciary principle’).

In the article based upon this talk which is being published by Trusts & Trustees I go on to examine the operation of the fiduciary principle in the wider commercial and contractual context. The question then becomes ‘can a contract be rescinded on the grounds of breach of fiduciary duty, by reason of silence?’ I conclude that it can.

Whereas every breach of fiduciary duty is breach of trust, not every breach of trust is a breach of fiduciary duty. Breach by a fiduciary which is not a breach of fiduciary duty but breach of his duty of care, will be treated like a claim for damages.

A Leonard Rotman explains (and I quote), ‘Trust duties are… fiduciary duties, trust relationships are necessarily fiduciary relationships, and trustees are… fiduciaries. On the other hand, fiduciary duties may not be trust duties.… [Fiduciaries] are obliged, within the fiduciary elements of their interactions to focus their energies on serving their beneficiaries’ best interests. The definition of “best interests” is not entirely straightforward, though. Does it entail that fiduciaries have positive duties to foster or further their beneficiaries’ interests, such as taking positive steps to obtain the best possible price for a property? Alternatively… must fiduciaries only refrain from acting in ways that are detrimental to their beneficiaries’ interests, thereby entailing that their duties are negatively fashioned – for example, a duty not to engage in conflicts, whether of interest and duty or of duty and duty?… Whether or not the rules and obligations imposed upon fiduciaries are positive (you must do this) or negative (you may not do that), the fact is that the fiduciary concept prescribes such rules and obligations: these are positive, purposive inclusions designed to achieve particular results. As with the situation involving express trustees, once persons or things are described as fiduciaries, Equity intervenes and prescribes a standard of conduct to which they must adhere.’ It is therefore critical to work out the nature of the breach.

The duty owed by a fiduciary to exercise skill and care towards his principal is not a fiduciary duty.
Breach of the duty of care, is therefore not a breach of fiduciary duty, and will neither render void or voidable a transaction entered into by or at the instigation of the fiduciary, nor give rise to the restitutionary, restorative, or proprietary remedies available for breach of fiduciary duty.
The ambit and interpretation of fiduciary duties may vary depending upon the nature of the underlying fiduciary relationship because:
(i) different categories of fiduciary may have different levels of duty; and
(ii) a fiduciary may owe duties fiduciary duties in respect of some of their activities, but not all of them.

Not every breach of duty by a fiduciary is a breach of fiduciary duty, Hilton v Barker, Booth and Eastwood [2005] UKHL 8, [2005] 1 WLR 567, [29] (Lord Walker). The fact that a professional person e.g. a solicitor/executor/trustee, is subject to fiduciary obligations, does not mean that all his duties to his client are fiduciary duties. His contractual and tortious duties are still owed in contract and tort.

They do not become fiduciary duties because he is a fiduciary. Nor is the scope of the contractual or tortious duties enlarged because the solicitor also owes fiduciary duties. The courts will therefore not impose fiduciary obligations to make good failure by a party to a contract to obtain adequate protection of his interests which could have been achieved by the inclusion of appropriate contractual provisions.

Nor will fiduciary duties be superimposed on common law duties simply to improve the nature and extent of the remedy.

Fiduciary duties provide the basis for a cause of action that is flexible in its application to a wide range of factual circumstances which are likely to be made out in a fraud case.

The following consequences flow from breach:
• establishing breach gives rise to a range of equitable remedies which might not otherwise be available, including: (i) account and enquiries;; and (ii) obligations to disgorge profits – it is a peculiarity of fiduciary law that C can obtain remedies which put him in the position in which he would have been in had the fiduciary done the act under challenge for C’s benefit, rather than had it not been done at all;
• benefits obtained in breach of fiduciary duty (including bribes and secret commissions), will be held on constructive trust for the principal, giving him the ability to recover them in priority to other creditors in the event of the fiduciary’s insolvency, as well as rights to take the benefit of any appreciation in value, and to trace or follow them into the hands of third parties and into substitute assets;
• a breach of fiduciary duty will in principle open up equitable accessory liability claims against third parties, most notably those who have dishonestly assisted in the breach and those who have unconscionably received money or assets transferred by reason of the breach; and
• a breach of fiduciary duty owed with respect to property which belongs beneficially to C will enable C to follow the property, once misappropriated in the fraud, and to trace its value by using the more flexible principles of equity, and thereby make it possible to assert proprietary claims to the original assets or to those acquired with or substituted for them;
• where, for example the fiduciary is a solicitor, it is ‘much more difficult to assess whether communications with them are privileged, and much easier to compromise the status of communications with them that are properly classified as privileged.’ See ‘Fiduciaries and legal professional privilege’ by Gareth Tilley, Trusts & Trustees, Vol 24, No. 3, April 2018, 243-249; and
• the s.21(1) Limitation Act 1980 carve-out may apply on the facts. Because the six-year limitation period set out in s.21(3) of the Limitation Act 1980 is subject to a carve-out, set out in s.21(1), the effect of which is that, ‘if a beneficiary under a trust brings an action against a trustee of that trust; or (b) to recover from the trustee property or the proceeds of trust property, then no limitation period under the 1980 Act will apply,’ (Grant QC, Thomas, and David Mumford QC, paragraph 25-014). For a discussion of the implications of the decision of the Supreme Court in Burnden Holdings (UK) Limited v Fielding and another [2018] UKSC 14, in which the Supreme Court unanimously held that for the purposes of s.21 a ‘director’ was a ‘trustee’ simply because directors owe fiduciary duties, see ‘The Scope of “Trustee” Under Section 21 Limitation Act 1980’ by Martin Kwan, Trusts & Trustees, Vol 24, No.5, June 2018, pp 452-455.

In determining whether a person is a fiduciary, it is first necessary to consider whether that person is in a relationship with another that falls within one of the recognised categories of fiduciary relationships.

If it does not, it is then necessary to examine the factual circumstances of the relationship to determine there are sufficient hallmarks of a fiduciary relationship to enable the court to conclude that the relationship is indeed fiduciary.

Once it has been recognised that the defendant is a fiduciary in a fiduciary relationship, it is necessary to consider the nature and ambit of the fiduciary duties to which he is subject.

Outside of the paradigm settled cases, the content of fiduciary duties is flexible and fact-sensitive.

In that context, it is therefore necessary to examine with some care what is the precise content of the particular fiduciary obligations arising in the specific circumstances of the individual case.

For a fiduciary to be liable for breach of fiduciary duty, he must have breached the duty by an intentional act. Unconscious omission is not sufficient.

However, in order to establish breach:
• it is not necessary to demonstrate that the fiduciary has breached some other duty owed to the principal by reason of his self-interest;
• it is irrelevant that the dealing was fair, or has benefitted the principal;
• it is also irrelevant that the fiduciary’s potentially conflicting interest is not one that the principal could himself have exploited; and
• it is not necessary to demonstrate that the fiduciary acted in bad faith, or dishonestly.
A fiduciary will therefore be held liable even if he did not act fraudulently or in bad faith, and even where he honestly believed that he was acting in good faith, Murad v Al-Saraj [2005] EWCA Civ 969, WTLR 1573, [67] (Arden L.J.).

Liability for breach of fiduciary duty is strict.
In other words, it is not necessary for the principal to prove that they have suffered harm as result of the breach of duty, or that any profit obtained by the fiduciary can be attributed to the breach.

Because there is considerable uncertainty as to what is and is not truly a ‘fiduciary duty’, practitioners must proceed with caution.

Not least, because not all of the duties owed by a person who occupies a fiduciary position viz-a-viz another will be fiduciary duties at all; and not all of those which can appropriately be described as being fiduciary will be so in the same sense or attract the same remedial consequences.

Approach of the court

‘[The] facts and circumstances of each case must be carefully examined to see whether a fiduciary relationship exists in relation to the matter of which complaint is made.’ Brooke LJ, In Plus Group Ltd v Pyke [2002] B.C.L.C. 201 at 75. The enquiry involves the identification of:

(i) a relationship that presumptively involves, or of circumstances that justify the imposition of, fiduciary duties;

(ii) the duties of a fiduciary character that are owed;

(iii) the content of those duties; and

(iv) to what aspects of the relationship they pertain.

As Lord Upjohn cautioned in Boardman v Phipps 1967] 2 A.C. 46, ‘rules of equity have to be applied in such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case.’
Recently, in Glenn v Watson & Ors [2018] EWHC 2016 (Ch) (31 July 2018), Mr Justice Nugee summarised the principles that emerge [and I quote] from
‘a number of authorities on the question whether a fiduciary duty is owed by one person to another’.
He stated what he understood the principles to be, as follows:
‘(1) There are a number of settled categories of fiduciary relationship. The paradigm example is that of trustee and beneficiary; other well-settled examples are solicitor and client, agent and principal, director and company (subject to the impact of the Companies Act 2006), and the relationship between partners: Snell’s Equity (33rd edn, 2015) at §7 004.
(2) Outside these settled categories, fiduciary duties may be held to arise if the particular facts warrant it. Identifying the circumstances that justify the imposition of fiduciary duties has been said to be difficult because the courts have consistently declined to provide a definition, or even a uniform description, of a fiduciary relationship.
(6) What then are the particular factual circumstances that will lead to the Court finding that fiduciary duties are owed? This can best be elucidated by a number of citations:
(a) In his well-known classic judgment in Bristol & West Building Society v Mothew [1998] Ch 1 (“Mothew”) at 18A, Millett LJ said [and I quote]:

“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.”
(b) In Arklow Investments Ltd v Maclean [2000] 1 WLR 594 at 598G, Henry J, giving the judgment of the Privy Council, said [and I quote]:
“the concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal.”
(c) In F&C Alternative Investments (Holdings) Ltd v Barthelemy (No 2) [2011] EWHC 1731 (Ch) at [225], Sales J said [and I quote]:
“Fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct of the affairs of another.”
(d) In another case involving Ross River Ltd, Ross River Ltd v Cambridge City Football Club [2007] EWHC 2115 (Ch) (cited by Lloyd LJ in Ross River at [56]-[58]), Briggs J referred at [198] to [and I quote]:
“well known badges or hallmarks of a fiduciary relationship, such as … [if] the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf or for his benefit.”
(e) In Ross River at [51]-[52] Lloyd LJ cited with approval a passage from Bean, Fiduciary Obligations and Joint Ventures (1995) (itself referring to Finn, Fiduciary Obligations (1977)), which is too long to set out in full but the essence of which is as follows [and I quote]:
“[Fiduciary] office holders are entrusted with power to act for the benefit of another, but are not under the immediate control and supervision of the beneficiary…
Finn’s rationale is that the fiduciary who has freedom to determine how the interests of the beneficiary are to be served requires the supervision of equity. Indeed, it is the fiduciary’s autonomy in decision-making that requires equity’s supervision, and this is required whether or not the autonomy is created under a contract between the parties or is inherent in the office.”
(7) Without in any way attempting to define the circumstances in which fiduciary duties arise (something the courts have avoided doing), it seems to me that what all these citations have in common is the idea that A will be held to owe fiduciary duties to B if B is reliant or dependent on A to exercise rights or powers, or otherwise act, for the benefit of B in circumstances where B can reasonably expect A to put B’s interests first. That may be because (as in the case of solicitor and client, or principal and agent) B has himself put his affairs in the hands of A; or it may be because (as in the case of trustee and beneficiary, or receivers, administrators and the like) A has agreed, and/or been appointed, to act for B’s benefit. In each case however the nature of the relationship is such that B can expect A in colloquial language to be on his side. That is why the distinguishing obligation of a fiduciary is the obligation of loyalty, the principal being entitled to “the single-minded loyalty of his fiduciary” (Mothew at 18A): someone who has agreed to act in the interests of another has to put the interests of that other first. That means he must not make use of his position to benefit himself, or anyone else, without B’s informed consent.
(10) Even if a party is held to have owed a fiduciary duty to another party, the nature of the fiduciary obligations owed is itself a fact-sensitive enquiry, to be determined by considering the particular relationship between the parties: Ross River at [64]. Thus for example in John v James the defendants were not disposed to dispute that the publisher owed a fiduciary obligation to account for royalties received, but it was disputed, and had to be decided, whether it owed a fiduciary obligation in respect of exploitation of the copyrights; in Ross River Morgan J had found that the defendants owed fiduciary duties in certain respects but not others, and the Court of Appeal found that the duties were more extensive.
134. I will add one further point here. The reference in the cases (such as John v James, Mothew and Longstaff v Birtles) to a relationship of “trust and confidence” does not mean that every relationship in which one party trusts the other is a fiduciary relationship. Contracting parties usually do trust each other – indeed they would be unlikely to do business with each other if they did not – but this does not mean that they owe each other the duties which are peculiar to fiduciaries. What I think is meant by a relationship of trust and confidence in this context is where one party places himself, or is placed, in the position where he trusts and confides that the other party will act exclusively in the first party’s interests. If the concept of trust and confidence is not confined in this way, it seems to me to cease to be of any utility in determining whether a fiduciary duty is owed: cf the recent decision of Leggatt LJ (at first instance) in Sheikh Al Nehayan v Kent [2018] EWHC 333 (Comm) (“Al Nehayan”) at [164]-[165]. This judgment, which contains a valuable analysis of the whole question of fiduciary duties (see at [153ff]), was not available at the time of the hearing, but it contains nothing with which I disagree, and on this particular point seems to me plainly right, and I have not thought it necessary to ask for the parties’ further submissions on it.’

In Sheikh Al Nehayan v Kent [2018] Lord Justice Leggatt stated,
‘As Lord Browne-Wilkinson cautioned in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 206: [and I quote]
“The phrase ‘fiduciary duties’ is a dangerous one, giving rise to a mistaken assumption that all fiduciaries owe the same duties in all circumstances. That is not the case.” … I bear in mind that it is exceptional for fiduciary duties to arise other than in certain settled categories of relationship. The paradigm case of a fiduciary relationship is of course that between a trustee and the beneficiary of a trust. Other settled categories of fiduciary include partners, company directors, solicitors and agents. Those categories do not include shareholders, either in relation to the company in which they own shares or to each other. While it is clear that fiduciary duties may exist outside such established categories, the task of determining when they do is not straightforward, as there is no generally accepted definition of a fiduciary. Indeed, it has been said that a fiduciary “is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary”: see Finn, Fiduciary Obligations (1977), p2, cited with approval by Millett LJ in Bristol and West Building Society v Mothew [1998] Ch 1, 18. If this is right, it simply begs the question of how to determine when a person is subject to fiduciary obligations if not by analysing the nature of their relationship with the person to whom the obligations are owed.

Despite saying in the Mothew case that a fiduciary is defined by the obligations to which he is subject and not the other way round, Millett LJ did give a general description of a fiduciary as “someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence”: see [1998] Ch 1, 18. This description has often since been cited with approval, including by the Supreme Court in FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2015] AC 250, para 5. To similar effect, in another much-quoted statement, Mason J in the High Court of Australia in Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, 96-97, said:
“The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position.”
Thus, fiduciary duties typically arise where one person undertakes and is entrusted with authority to manage the property or affairs of another and to make discretionary decisions on behalf of that person. (Such duties may also arise where the responsibility undertaken does not directly involve making decisions but involves the giving of advice in a context, for example that of solicitor and client, where the adviser has a substantial degree of power over the other party’s decision-making: see Lionel Smith, “Fiduciary relationships: ensuring the loyal exercise of judgement on behalf of another” (2014) 130 LQR 608.) The essential idea is that a person in such a position is not permitted to use their position for their own private advantage but is required to act unselfishly in what they perceive to be the best interests of their principal. This is the core of the obligation of loyalty which Millett LJ in the Mothew case [1998] Ch 1 at 18, described as the “distinguishing obligation of a fiduciary”. Loyalty in this context means being guided solely by the interests of the principal and not by any consideration of the fiduciary’s own interests. To promote such decision-making, fiduciaries are required to act openly and honestly and must not (without the informed consent of their principal) place themselves in a position where their own interests or their duty to another party may conflict with their duty to pursue the interests of their principal. They are also liable to account for any profit obtained for themselves as a result of their position …
But the existence of trust and confidence is not sufficient by itself to give rise to fiduciary obligations. In the first place, the question whether one party did in fact subjectively place trust in the other is not the test. As Dawson J said in the Hospital Products case (1984) 156 CLR 41 at 71:
“A fiduciary relationship does not arise where, because one of the parties to a relationship has wrongly assessed the trustworthiness of another, he has reposed confidence in him which he would not have done had he known the true intentions of that other. In ordinary business affairs persons who have dealings with one another frequently have confidence in each other and sometimes that confidence is misplaced. That does not make the relationship a fiduciary one. A fiduciary relationship exists where one party is in a position of reliance upon the other because of the nature of the relationship and not because of a wrong assessment of character or reliability.”

The inquiry, in other words, is an objective one involving the normative question whether the nature of the relationship is such that one party is entitled to repose trust and confidence in the other.
It is also necessary to identify more precisely the nature of the trust and confidence which is a feature of a fiduciary relationship.

Hallmarks

The essential characteristic of the core obligation owed by a fiduciary to his principal is self-denying loyalty. For that obligation, and the fiduciary duties associated with it to be owed, the fiduciary must have undertaken to perform a function, or assumed a responsibility, for another that gives rise to a reasonable expectation that he will act in that way. The guiding principle was encapsulated in a single formula by Finn J, in the Australian case of Grimaldi v Chameleon Minin NL (No. 2) [2012] FCAFC 6:
“a person will be in a fiduciary relationship with another when and insofar as that person has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other to expect that he or she will act in that other’s interest to the exclusion of his or her own or a third party’s interest.”
Traditionally, a person is treated as a fiduciary because they are subject to fiduciary duties. There is no legal definition. As Finn puts it, a fiduciary ‘is not subject to fiduciary obligations because he is a fiduciary: it is because he is subject to them that he is a fiduciary.’

In Bristol & West Building Society v Mothew [1998] Ch.1 Lord Justice Staughton stated, [and I quote]:
‘I would endorse the observations of Southin J. in Girardet v. Crease & Co. (1987) 11 B.C.L.R. (2d) 361, 362:
“The word ‘fiduciary’ is flung around now as if it applied to all breaches of duty by solicitors, directors of companies and so forth. . . . That a lawyer can commit a breach of the special duty [of a fiduciary] . . . by entering into a contract with the client without full disclosure . . . and so forth is clear. But to say that simple carelessness in giving advice is such a breach is a perversion of words.”
These remarks were approved by La Forest J. in LAC Minerals Ltd. v. International Corona Resources Ltd. (1989) 61 D.L.R. (4th) 14, 28 where he said: “not every legal claim arising out of a relationship with fiduciary incidents will give rise to a claim for breach of fiduciary duty.”
I … endorse the comment of Ipp J. in Permanent Building Society v. Wheeler (1994) 14 A.C.S.R. 109 , 157:
“It is essential to bear in mind that the existence of a fiduciary relationship does not mean that every duty owed by a fiduciary to the beneficiary is a fiduciary duty. In particular, a trustee’s duty to exercise reasonable care, though equitable, is not specifically a fiduciary duty . . .”
Equitable compensation for breach of the duty of skill and care resembles common law damages in that it is awarded by way of compensation to the plaintiff for his loss. There is no reason in principle why the common law rules of causation, remoteness of damage and measure of damages should not be applied by analogy in such a case. It should not be confused with equitable compensation for breach of fiduciary duty, which may be awarded in lieu of rescission or specific restitution.
This leaves those duties which are special to fiduciaries and which attract those remedies which are peculiar to the equitable jurisdiction and are primarily restitutionary or restorative rather than compensatory. A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr. Finn pointed out in his classic work Fiduciary Obligations (1977), p. 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary …
The nature of the obligation determines the nature of the breach. The various obligations of a fiduciary merely reflect different aspects of his core duties of loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.’

Scope and content

Courts have frequently observed that “the scope of the fiduciary duty must be moulded according to the nature of the relationship and the facts of the case” Thus “to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? Statements emphasising the “the obligation imposed may vary in its specific substance depending upon the relationship” can be read as suggesting that courts possess discretion to craft and apply fiduciary duties as they see fit. It is important, however, to recognise that the moulding of fiduciary duties to the circumstances of the case is not an unprincipled exercise in judicial discretion. Understanding fiduciary duties as protective of non-fiduciary duties provides a solid theoretical underpinning for this important tenet of fiduciary doctrine. Because fiduciary duties are designed to protect non-fiduciary duties, by removing temptations and incentives that are inconsistent with proper performance of those duties, fiduciary doctrine’s response to a particular factual situation must, as a matter of logical necessity, take account of the non-fiduciary duties which are owed in that situation.’ Conlagen, page 177.
The overriding obligation of a fiduciary is loyalty, in that the principal is entitled to the single-minded loyalty of the fiduciary. There are two fundamental duties, the;
– ‘no conflict’ and
– ‘no profit’ duties.
‘[It] is a rule of universal application that no one having [fiduciary] duties to discharge shall be allowed to enter into agreements in which he has or can have personal interest conflicting or which possibly may conflict with the interest of those whom he is bound to protect.’ Aberdeen Railway Co v Blaikie Brothers [1843-60] All E.R. Rep 249, per Lord Carnworth LC at 252.
‘[It] is an inflexible rule of a court of equity that a person in a fiduciary position … is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict.’ Lord Herschell in Bray v Ford [1896] AC 44,50.
‘These are uncontroversially and quintessentially fiduciary duties: they are peculiar to fiduciaries, and they serve the same underlying prophylactic purpose of ensuring that the fiduciary does not allow his performance of his primary obligations to his principal to be influenced by considerations of self-interest. Both duties are also proscriptive: they do not tell the fiduciary what he should do for his principal; they tell him what he should avoid doing, in order that there is no sensible risk of him acting other than in the best interests of his principal and in accordance with other (non-fiduciary) duties … If the fiduciary breaches these proscriptive duties by allowing other interests (even potentially) to intrude, he is treated as if he had acted for his principal. As a result, these duties attract peculiar remedial consequences: they give rise to equitable remedies that are “primarily restitutionary or restorative rather than compensatory, including in particular rescission (the right at the principal’s election to set the relevant transaction aside), the obligation to account for and disgorge unauthorised profit, and proprietary remedies based on constructive trust.’ Grant QC, Thomas, and David Mumford QC, paragraphs 11-076 and 11-077.

Equitable remedies

The usual remedy where the fiduciary has breached a fiduciary duty is rescission of any transaction entered into by the fiduciary with or on behalf of the principal and the fiduciary will be liable to disgorge to the principal any profit made from the breach of duty. But equity can also require the fiduciary to compensate the principal for any loss suffered as a result of the breach of fiduciary duty. It follows that the principal may have to elect between disgorgement bd compensatory remedies. The choice of remedy will be determined by whether the loss suffered by the principal is greater than the profit obtained by the fiduciary. The principal will not be able to recover both compensatory and disgorgement remedies, since this would be in double recovery. The fiduciary may also hold profit obtained from breaching the fiduciary duty on constructive trust for the principal, so that the principal has an equitable proprietary interest in the property held on trust, which will provide a basis for a proprietary claim …
The nature of the remedy sought will depend on the consequences of the breach. The remedy may be proprietary, in the sense that the claimant might seek to recover property from the defendant or to obtain a security interest in the defendant’s property … Where the defendant no longer has property belonging to the claimant or where the breach did not involve the defendant receiving any property, the remedy sought will be personal, in the sense that the claimant seeks to obtain a money remedy from the defendant representing the value of the claim … The key advantages of proprietary remedies are that the claimant will have priority over other creditors of the defendant, which will be significant where the defendant is insolvent. Another advantage of proprietary remedies where the claimant seeks to recover particular property retained by the defendant is that the claimant will gain the benefit of any increase in the value of that property. Of course, if the property has fallen in value, the claimant will bear the loss, which would make a personal remedy more attractive. Where, however, the defendant is not insolvent or facing insolvency, and where the property retained by the defendant has neither increased nor fallen in value, there may be little to choose between proprietary and personal remedies. A final advantage of proprietary remedies is that they can be obtained from a third party recipient of the property even if they were unaware that the claimant had any proprietary rights to the property, save if the third party had also provided some value for the property. Where a trustee has misappropriated trust property and used it to acquire other property, the beneficiaries can elect whether to seek a personal remedy to recover the value of the property which has been misappropriated or, instead, adopt the substitute property as part of the trust fund. The beneficiaries will, of course, prefer to recover the substitute property if its value is greater than the value of the property which was misappropriated.’ Virgo, paragraphs 15.1.5 and 18.1.1.

To determine whether the claimant has an interest in identifiable property, i.e. a ‘proprietary base’, in relation to an equitable proprietary claim, the property interest must be an equitable one. A proprietary base can be established either by showing that a new proprietary interest has been created, or that an existing proprietary interest has been retained by the claimant, notwithstanding the transfer of property. Equitable proprietary interests can be created by express intention in the form of an express trust or can be imposed by operation of law in the form of the constructive trust. In either case, legal title to the property will vest in the trustee, and the beneficiaries will possess an equitable interest. Where a principal transferred property to a fiduciary, he will be able to bring an equitable proprietary claim against the fiduciary or a third party, where the property has been misappropriated, Re Hallett’s Estate [1880] 13 Ch D 696, 709 (Sir George Jessel MR).

‘Once an equitable proprietary interest has been identified, the claimant will then need to show that this interest can be identified in the property that has been received by the defendant. To do this, the claimant will need to rely on the following and tracing rules. The essence of following is that the claimant is able to show that the property in which they have a proprietary interest has been received by the defendant. If the identity of the claimant’s property has been lost or the property has been destroyed, they will no longer be able to follow it. Where the claimant’s property is transferred directly to the defendant, there is no difficulty in following the property. Where, however, the property is received indirectly by the defendant, the question of following may be more difficult to establish on the facts. Where the original property cannot be followed (because, for example, it has been dissipated or has lost its identity in a mixture), it is necessary for the claimant to show that the value of the property in which they originally had a proprietary interest can be identified in substitute property that has been received by the defendant. Whether the claimant can establish this depends on the application of the tracing rules, which are evidential rules and presumptions that enable the claimant to prove that value in the original property is represented in the substitute property.’ Virgo, paragraph 19.3.1. The main advantage of tracing in equity is that it will not be defeated by the irretrievable mixing of property, Agip (Africa) Ltd v Jackson [1991] Ch 417. The orthodox requirement for tracing in equity is that it is necessary to show that the property in which the claimant had an equitable proprietary interest passed to the defendant through the hands of a fiduciary in breach of duty. In other words, there must have been an unauthorised disposition of property, Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072.

Where the fiduciary has profited from the breach of fiduciary duty, they will be liable to disgorge the profit to the principal, Nocton v Lord Ashburton [1914] AC 932, 956-7 (Viscount Haldane VC). Where the principal has been remunerated for work done in breach of fiduciary duty those payment can be forfeited to the principal, Hosking v Marathon Management LLP [2016] EWHC 2418 (Ch). Where the principal has suffered loss as a result of the breach of fiduciary duty, they may seek equitable compensation from the fiduciary, Bristol and West Building Society v Mothew [1998] Ch1. These are alternative remedies and the principal will need to choose between them to avoid double recovery. Where there are separate causes of actions, both of which are based upon breach of fiduciary duty, e.g: (i) claiming rescission for self-dealing in relation to property assets; and (ii) equitable compensation for selling trust investments at a loss, they may and should be included in the same claim form. Whilst ‘failure to specify a particular remedy will not limit any power of the court to grant such a remedy if the claimant is entitled to it (r.16.2(5)) … the best practice is to set out all the remedies that are being claimed against the defendant, and there may be costs penalties if this is not done.’ Kay, The Rt Hon Sir Maurice, Stuart Sime, and Derek French, paragraph 23.7. The Court of Appeal held in FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, that when a fiduciary is liable to account for profits made as a result of a breach of fiduciary duty, the profits will be held on an institutional constructive trust for the principal. Therefore, whenever a fiduciary receives a bribe or secret commission in breach of fiduciary duty, it will be held on constructive trust. The underlying rationale being that the principal has an equitable proprietary interest in the bribe/secret commission because the fiduciary is treated as though he had acquired the bribe/secret commission on behalf of the principal. The rationale ensures fiduciary fidelity.

The primary personal equitable remedies available in relation to breach of fiduciary duty are:
• rescission;
• equitable compensation;
• an account of funds
• an account of profits; and
• injunctions.
These remedies operate against the person of the defendant wrongdoer irrespective of whether or not he retains property that may have been the subject of the claim, i.e. they are not proprietary. Proprietary liability is independent of fault. It therefore only lies where the recipient still has the property received or its traceable proceeds.
Rescission
Rescission is a remedy by which a subsisting transaction is avoided. It is available both at common law and in equity. The principal distinction between them is that rescission at common law is a self-help remedy which takes effect upon the communication of the election of the party entitled; whereas rescission in equity (subject to possible exceptions) is a form of relief granted by the court. Whether rescission is available at law or in equity will depend upon the ground for invoking it. In principle the remedy is available for:
• fraudulent misrepresentation (at common law and in equity);
• non-fraudulent misrepresentation (in equity);
• non-disclosure (at common law);
• unilateral mistake in relation to a gift but not contract, where it would be unconscionable to hold the mistaken party to the transaction (in equity), Kennedy v Kennedy [2014] EWHC 4129, per Sir Terence Etherton C, at 36;
• breach of the proscriptive fiduciary duties concerned with conflicts and profit (in equity);
• bribery (at common law and in equity);
• undue influence and unconscionable bargains (in equity), and duress (at common law and in equity); and
• mental incapacity (at common law and in equity).
Where a ground is recognised both at common law and in equity, the court can intervene and make an order for rescission ion equity where the common law right that might otherwise exist is unavailable. The right to rescind will be lost if the wronged party affirms the transaction. An election to affirm is final, Peyman v Lanjani [1985] Ch.457. However, there can be no such affirmation without full knowledge of the facts that give rise to, and the existence of the right, and the party affirming must be free from the relevant vitiating factor. Therefore, the victim of a deceit must know the true facts.
Rescission produces two main effects. First, it cancels all future obligations. Secondly, it nullifies the transaction ab initio. In relation to a contract, it is avoided from the beginning. Therefore, all of the effects of the contract, from the moment of rescission going back to the date of creation of the contract are reversed.

The position is very different in equity. In those cases where the vitiating factor as one for which the common law gave no relief, such as undue influence or breach of fiduciary duty, equity did not accept the common law’s view that rescission was the act of the innocent party. Equity could not adopt that view because a transaction which is not voidable at law could not be nullified other than by a judicial act. Since rescission of a transaction which was impeachable only in equity required judicial intervention, the innocent party seeking rescission had to go to the court of equity for its active intervention to give him the relief. If granted, the rescission was effective from the date of judgment. Rescission in such a case was the act of the court, not that of the plaintiff. If the court found that the ground for rescission was made out, it proceeded to set aside the agreement. And it is still the position today that rescission on the ground of equitable vitiating factors of undue influence, abuse of confidence and unconscionable dealing continues to be the act of the court rather than that of the innocent party. Thus, is Midland Bank Plc v Greene, a case concerned with undue influence, it was stated that “the right to avoid a voidable transaction is a right to apply to the court to exercise its equitable jurisdiction.”’ Enonchong, paragraph 28-005.
‘Although the remedy of rescission is usually relevant to set aside a contract, it is also relevant to setting aside other transactions, including wills [Re Edwards (deceased) [2007] EWHC 1119], deeds of gift, and other voluntary settlements, such as a disposition to trusts [Pitt v Holt [2013] UKSC 26]’, Virgo, paragraph 21.6.1.

‘Contracts or voluntary dispositions, including wills [Schrader v Schrader [2013] EWHC 466 and Edwards v Edwards [2007] WTLR 1387], can be set aside where they have been induced by undue influence. The rules in both instances are broadly the same. The essence of undue influence is that the party making the contract of disposition was dominated by the other so that he was not acting of his own free choice. Actual undue influence … may be through the exercise of conscious deception, although there will also be cases where a trusted advisor has broken his fiduciary duty of loyalty by preferring his own interests [Royal Bank of Scotland Plc v Chandra [2011] EWCA Civ 192 at 26.].’ Pearce, Robert and Warren Barr, page 805.
Rescission will be barred where it is not possible to return the parties to their original position, i.e. if property has been transferred to a bona fide purchaser for value, if the principal has affirmed the transaction, or if too much time has elapsed before the principal has sought to rescind it.

Equitable compensation

In Canson Enterprises Ltd v Boughton and Co [1991]85 DLR (4TH) 129, 163, McLachlin J, sitting in the Supreme Court of Canada, said that ‘compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate.’ This was approved by Lord Browne-Wilkinson in Target Holdings v Redferns [1996] 1 AC 421, 438.

Equitable compensation is not compensation for loss, it is restitution of the trust fund. If the defaulting trustee cannot restore the assets to the trust fund, then he must pay money into the trust instead. How much has to be paid into the trust fund is assessed by looking at the matter with hindsight to see what would be comprised in the trust fund but for the breach. There must be a causal link between the breach and the loss to the trust fund.

A claim for equitable compensation for breach of fiduciary duty is not limited by foreseeability, remoteness, and other considerations which affect the recovery of common law damages. So, the defendant will be liable to compensate for loss arising directly or indirectly as a result of the breach even if it was unforeseeable at the time of breach. In equity, the loss is assessed at the date of trial, with the benefit of hindsight. Furthermore, unless a contractual limitation and exclusion clause expressly contemplates and applies to a claim for an equitable remedy, it may not apply. A skilfully drafted full blown indemnity clause in a contract between businessmen almost certainly will. That, commercially, could prove catastrophic (a ‘double whammy’) for the party who is liable for the breach and default, because liability is unlimited, and pure economic losses (i.e. losses that are not the result of injury to person or tangible property) are recoverable under English law. See also, ‘Equitable Compensation arising out of sale of property ordered under section 14 TLATA’ by Carl Islam, Trusts & Trustees, Vol 23, No.10, December 2017, pp 990-995.

Taking of an account

Where there has been a breach of trust or fiduciary duty, it does not follow that there is an automatic right to compensation, since no loss may have been suffered as a result of the breach. Whereas, ‘for breach of contract the principal remedy is damages to compensate for loss by putting the claimant in the position in which they would have been had there not been a breach of contract, where a breach of trust has occurred, Equity’s principal mechanism for providing relief is the taking of an account, which in form is not even remedy, but simply involves an assessment by the court of the state of the trust fund. Once the account has been taken, however, monetary relief may follow if the account reveals that a loss has been suffered by the trust or the defendant has made a gain. An account will also be available where a fiduciary who is not a trustee is responsible for managing the principal’s property as steward of it, such as where a fiduciary holds property as an executor or receiver; such a fiduciary will be accountable for the property.’ Virgo, paragraph 18.1.2.
An account of funds is a process by which the dealings by a trustee or fiduciary with the funds or property under his control are examined with a view to identifying and quantifying (among other things) the appropriate relief for any breaches of duty. It therefore does not depend of there having been a wrong. The right to an account follows from the existence of the relevant relationship and its availability is not dependent on the establishment of breach.
‘The procedure for an account and inventory may be used … where … there is concern that the personal representatives are not acting in good faith and may be securing assets for their own benefit …’ Goodman, Dawn, Paul Hewitt, and Henrietta Mason, paragraph 13.11.

‘An action for an account … arises from the fiduciary relationship of the trustee and the beneficiary. A representative clearly has a similar duty to account in the course of administration. That duty is to keep the beneficiary informed and to render accounts… It is the duty of a representative to keep clear up to date and distinct accounts of the property that he is bound to administer … Where one or more breaches of trust are proved or admitted a general account on the footing of wilful account will be ordered if the past conduct of the trustees is such as to give rise to a reasonable inference that other breaches of trust not yet known to the claimant or the court have occurred.’ Learmonth, Alexander, Charlotte Ford, Julia Clark, and John Ross Martyn, paragraphs: 58-23 and 58-25. See also Islam, paragraph 2.4.7.

The Chancery Guide 2018 states,
‘23.1 Proceedings under judgments and orders in the Chancery Division are regulated by PD 40A (Accounts, Inquiries etc.), PD 40B (Judgments and Orders), and PD 40D (Court’s Powers in relation to Land etc).
Directions

Where a judgment or order directs further proceedings or steps, such as accounts or inquiries, it will often give directions as to how the accounts and inquiries are to be conducted, for example:
for accounts
• who is to lodge the account and within what period;
• within what period objection is to be made; and
• arrangements for inspection of vouchers or other relevant documents;
for inquiries;
• whether the inquiry is to proceed on written evidence or with statements of case;
• directions for service of such evidence or statements; and
• directions as to disclosure.
If directions are not given in the judgment or order an application should be made to the assigned Master as soon as possible asking for such directions. The application notice should specify the directions sought. Before making the application, applicants should write to the other parties setting out the directions they seek and inviting their response within 14 days. The application to the court should not be made until after the expiry of that period unless there is some special urgency. The application must state that the other parties have been consulted and have attached to it copies of the applicant’s letter to the other parties and of any response from them. The Master will then consider what directions are appropriate. In complex cases the Master may direct a case management conference.
If any inquiry is estimated to last more than two days and involves very large sums of money or strongly contested issues of fact or difficult points of law, the Master may direct that it be heard by a Judge. The parties are under an obligation to consider whether in any particular case the inquiry is more suitable to be heard by a Judge and should assist the Master in this. Accounts, however long they are estimated to take, will normally be heard by the Master. The Master is likely to want to give detailed directions in connection with the account and the form of it.’ See also Kay, The Rt Hon Sir Maurice, Stuart Sime, and Derek French, paragraph 34.49.

In Attorney-General v Blake [2001] 1 AC 268 at 280, Lord Nicholls stated:

‘Equity reinforces the duty of fidelity owed by a trustee or fiduciary by requiring him to account for any profits he derives from his office or position. This ensures that trustees and fiduciaries are financially disinterested in carrying out their duties. They may not put themselves in a position in which their duty and interest conflict. To this end they must not make any unauthorised profit. If they do they are accountable. Whether the beneficiaries or persons to whom the fiduciary duty is owed suffered any loss by the impugned transaction is altogether irrelevant.’ In Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 286, by Lord Goff further observed that the plaintiff’s claim for restitution of benefits acquired in breach of a fiduciary relationship is usually enforced by an account of profit “made by the defendant through his wrong at the plaintiff’s expense”. In Murad v Al-Saraj [2005] EWCA Civ 959, at 141, Lady Justice Arden stated,
‘There is, in my opinion, considerable force in those submissions and, if the matter were free from authority I would hold that a person who makes a profit in the course of a fiduciary relationship must account for the profits he makes, that prima facie he must account for all the profits but that it should be open to him to show that it was always intended that he would make a profit from the transaction and to persuade the court if he can that, in the exercise of its equitable jurisdiction to order an account …’
In the same case, in the High Court Etherton J had described an account of profits as, ‘a particularly appropriate remedy in the case of deliberate and dishonest conduct designed to achieve a commercial advantage for the fiduciary over those to whom he owes his fiduciary duty.’

Quiet Fiduciary thesis

The case theory is that a claim for fraudulent calumny can be brought on the grounds of breach of fiduciary duty, where a fiduciary has been silent. The holder of a lasting power of attorney is a person who undertakes and is entrusted with authority to manage the property or affairs of his principal (i.e. the donor) to make discretionary decisions on behalf of that person. Thus, fiduciary duties arise. Hence the attorney is a fiduciary. An ‘attorney owes a fiduciary duty to the donor and cannot act so as to benefit him or herself or any other person to the detriment of the donor or the donor’s estate’ Court of Protection Practice 2018, paragraph 3.4. The Code of Practice issued under the Mental Capacity Act 2005 defines an attorney’s fiduciary duty as,

‘A fiduciary duty means that attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They must also not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor; and not the attorney. Attorney must not profit or get any personal benefit from their position ….’

Silence can amount to breach of fiduciary duty. In Androulla Marcou v Niki Christodoulides Niki Christodoulides v Androulla Marcou [2017], at first instance, Mr Recorder Lawrence Cohen QC stated, ‘Silence will not do for a fiduciary.’ In other words, a fiduciary is under a duty to speak.

On appeal, in Androulla Marcou v Niki Christodoulides, Mr Justice Morgan stated the legal test for discharging the burden of proof in a fraudulent calumny claim as follows:
‘The relevant legal principles were not in dispute at the trial. The Recorder applied the legal principles which both parties asked him to apply. Both parties relied upon the statement of principle in Re Edwards [2007] WTLR 1387 per Lewison J at [47]:
“47 There is no serious dispute about the law. The approach that I should adopt may be summarised as follows:
I) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a question of fact;
iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;
iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator’s will must be overborne, or by fraud.
v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;
vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A “drip drip” approach may be highly effective in sapping the will;
vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;
viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;
ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent” …
The question for the court is one of causation or inducement. The calumny must induce the change in the testator’s intentions. The challenger must prove that on the balance of probabilities. If it is possible that the calumny did induce the change, but the court is not persuaded on the balance of probabilities that it did induce the change, the challenge will fail. If there are other possibilities or other explanations and those other explanations persuade the court to find on the balance of probabilities that the calumny did not induce the change, the claim will fail. Conversely, although the court is given other possible explanations, if the court is nonetheless satisfied that on the balance of probabilities that the calumny did induce the will, then the claim succeeds. That is what is meant by the references to consistent and inconsistent hypotheses in re Edwards, which is itself based on Craig v Lamoureux [1920] AC 349. However, the use of the word “only” should not be understood as requiring a finding that there must have been no other reason operating in conjunction with the effect of the fraud for the testator to change his or her intentions.’
Therefore, a will may be set aside on the grounds of undue influence in the form of fraudulent calumny where a fiduciary (who is also a beneficiary under the will) withheld information from his principal (the deceased testator [‘T’]) for his own gain, which otherwise in all probability would have resulted, following disclosure, in T changing the scheme of gifting under his will by giving instructions for the drafting of a new will. In other words, the substantive validity of a will can be challenged on the grounds of undue influence in the form of fraudulent calumny manifest in silence by the fiduciary. Therefore, the theory is valid. Does it apply more widely?

Commercial and contractual context

‘The practical reality is that many fraud cases have at their heart the abuse of fiduciary relationships: a company director may divert a business opportunity to another vehicle in which he is interested rather than bringing it to fruition on his company’s behalf; a partner charged with managing a joint venture may account to his partners for only part of the profit made on a joint venture transaction and pocket the rest; an gent negotiating a deal on his principal’s behalf may be promised a secret commission by his principal’s counterparty; solicitor may use monies in his client account to support a business in which he is interested without informing his clients. In such cases, a claim for breach of fiduciary duty, or one against a third party predicated on a breach of fiduciary duty, is a powerful weapon in the fraud litigator’s armoury.’ Grant QC, Thomas, and David Mumford QC, Law, paragraphs 11-002 and 11-003.

The fiduciary duties of company directors are provided for by the Companies Act 2006 (‘CA 2006’). Section 175 of the CA 2006 provides that director is subject to a duty to avoid a situation in which they have, or could have, a direct or indirect interest that conflicts, or may conflict, with the interests of the company, other than an interest that arises in relation to a transaction or arrangement with the company. The duty to avoid a conflict of interest is not infringed if the situation cannot reasonably be regarded as likely to give rise to a conflict of interest, or if the matter has been authorised by the directors.

Because the keystone of fiduciary law is the fact that the principal so relies on the fiduciary as to leave the principal vulnerable to any disloyalty by the fiduciary, and therefore reliant upon his good faith, it follows, that a commercial relationship at arms-length, with both parties on an equal footing is unlikely to give to fiduciary obligations. As Dawson J put it in Hospital Products Ltd v United States Surgical Corp (1984) 156 C.L.R. 41 AT 142, ‘There is, however, the notion underlying all the cases of fiduciary obligation that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him to place reliance upon the other and requires the protection of equity acting upon the conscience of that other … From that springs the requirement that a person under a fiduciary obligation shall not put himself in a position where his interest and duty conflict or, if conflict is unavoidable, shall resolve it in favour of duty and shall not, except by special arrangement, make a profit out of his position.’ Equity will not impose a fiduciary relationship which is inconsistent with the terms agreed. As Lord Jauncey stated in Clark Boyce v Mouat (Privy Council) [1984] 1 A.C. 428, ‘A fiduciary duty concerns disclosure of material facts in a situation where the fiduciary has either a personal interest in the matter to which the facts are material or acts for another party who has such an interest. It cannot be prayed in aid to enlarge the scope of contractual duties.’
The possibility of identifying fiduciary relationships outside the established categories (i.e. directors and agents) is potentially very important as regards commercial transactions. The courts have generally refused to recognise that a commercial relationship that has been entered into at arm’s length and on an equal footing is a fiduciary relationship, because it lacks the hallmarks of trust and confidence. The identification of fiduciary duties in a commercial context can have profound consequences on the risks inherent in such relationships because the characterisation of the defendant as a fiduciary will often mean that they bear the risk of failure. Where the proper conclusion to draw from the terms and circumstances of the relationship is that each party could reasonably be expected not to have to subordinated his own interests to those of the other party, then necessarily the full-fledged fiduciary obligation of self-denying loyalty is not owed. It is nevertheless possible for fiduciary duties to be owed by directors to shareholders alongside the statutory duties they owe to the company. Such duties arise not from the relationship between the directors and the company, but from the existence of a separate and special factual relationship between the directors and the shareholders in the particular case. What is required is a particular dealing or communication between directors and shareholders, or a close personal relationship, and in almost all cases some transaction in which the directors and shareholders are involved. ‘A director of a company will similarly not normally owe fiduciary obligations to third parties who deal with the company, even where the company owes fiduciary obligations to them: the company and its management are, of course, distinct. However, in special circumstances such obligations can arise: for example, in a joint-venture relationship where there was a pre-existing relationship of trust and confidence with the director personally before he took office as such, or where the director personally assumed control of the joint venture’s affairs and was paid a fee that was deducted from the profits available for distribution.’ Grant QC, Thomas, and David Mumford QC, paragraph 11-038.

In Glenn v Watson & Ors [2018] EWHC 2016 (Ch) (31 July 2018), Mr Justice Nugee stated, ‘Fiduciary duties will not be too readily imported into purely commercial relationships. That does not mean that fiduciary duties do not arise in commercial settings – indeed they very frequently do, as the example of agency illustrates – but that outside the settled categories, this is not common, it being normally inappropriate to expect a commercial party to subordinate its own interests to those of another commercial party …
The reference in the cases (such as John v James, Mothew and Longstaff v Birtles) to a relationship of “trust and confidence” does not mean that every relationship in which one party trusts the other is a fiduciary relationship. Contracting parties usually do trust each other – indeed they would be unlikely to do business with each other if they did not – but this does not mean that they owe each other the duties which are peculiar to fiduciaries. What I think is meant by a relationship of trust and confidence in this context is where one party places himself, or is placed, in the position where he trusts and confides that the other party will act exclusively in the first party’s interests. If the concept of trust and confidence is not confined in this way, it seems to me to cease to be of any utility in determining whether a fiduciary duty is owed: cf the recent decision of Leggatt LJ (at first instance) in Sheikh Al Nehayan v Kent [2018] EWHC 333 (Comm) (“Al Nehayan”) at [164]-[165]. This judgment, which contains a valuable analysis of the whole question of fiduciary duties (see at [153ff]), was not available at the time of the hearing, but it contains nothing with which I disagree, and on this particular point seems to me plainly right, and I have not thought it necessary to ask for the parties’ further submissions on it.’
In Sheikh Al Nehayan v Kent, Lord Justice Leggatt stated,
‘But the existence of trust and confidence is not sufficient by itself to give rise to fiduciary obligations. In the first place, the question whether one party did in fact subjectively place trust in the other is not the test. As Dawson J said in the Hospital Products case (1984) 156 CLR 41 at 71:
“A fiduciary relationship does not arise where, because one of the parties to a relationship has wrongly assessed the trustworthiness of another, he has reposed confidence in him which he would not have done had he known the true intentions of that other. In ordinary business affairs persons who have dealings with one another frequently have confidence in each other and sometimes that confidence is misplaced. That does not make the relationship a fiduciary one. A fiduciary relationship exists where one party is in a position of reliance upon the other because of the nature of the relationship and not because of a wrong assessment of character or reliability.”
The inquiry, in other words, is an objective one involving the normative question whether the nature of the relationship is such that one party is entitled to repose trust and confidence in the other …
It is also necessary to identify more precisely the nature of the trust and confidence which is a feature of a fiduciary relationship. There plainly are many situations in which a party to a commercial transaction may legitimately repose trust and confidence in another without the other party owing any fiduciary duties. Thus, in Re Goldcorp Exchange Ltd (In Receivership) [1995] 1 AC 74, the Privy Council rejected an argument that a company was a fiduciary because it had agreed to keep gold bullion in safe custody for customers in circumstances where the customers were totally dependent on the company and trusted the company to do what it had promised without in practice there being any means of verification. Lord Mustill said (at 98):
“Many commercial relationships involve just such a reliance by one party on the other, and to introduce the whole new dimension into such relationships which would flow from giving them a fiduciary character would (as it seems to their Lordships) have adverse consequences …. It is possible without misuse of language to say that the customers put faith in the company, and that their trust has not been repaid. But the vocabulary is misleading; high expectations do not necessarily lead to equitable remedies.”
Mutual trust and confidence between parties dealing with one another can be of different kinds. At a basic level any contracting party is entitled to rely on the other party to perform its contractual obligations without having to monitor performance or even if (as in Re Goldcorp Exchange Ltd) it is unable to monitor performance. The kind of trust and confidence characteristic of a fiduciary relationship is different. As discussed above, it is founded on the acceptance by one party of a role which requires exercising judgment and making discretionary decisions on behalf of another and constitutes trust and confidence in the loyalty of the decision-maker to put aside his or her own interests and act solely in the interests of the principal.

It does not follow from the conclusion that he did not owe any fiduciary duties to Mr Kent that the Sheikh’s entitlement to pursue his own self-interest was untrammelled. I have previously suggested in Yam Seng Pte Ltd v International Trade Corp [2013] EWHC 111 (QB), at para 142, that it is a mistake to draw a simple dichotomy between relationships which give rise to fiduciary duties and other contractual relationships and to treat the latter as all alike. In particular, I drew attention to a category of contract in which the parties are committed to collaborating with each other, typically on a long-term basis, in ways which respect the spirit and objectives of their venture but which they have not tried to specify, and which it may be impossible to specify, exhaustively in a written contract. Such ‘relational’ contracts involve trust and confidence but of a different kind from that involved in fiduciary relationships. The trust is not in the loyal subordination by one party of its own interests to those of another. It is trust that the other party will act with integrity and in a spirit of cooperation. The legitimate expectations which the law should protect in relationships of this kind are embodied in the normative standard of good faith.
Although the observations that I made in the Yam Seng case about the scope for implying duties of good faith in English contract law have provoked divergent reactions, there appears to be growing recognition that such a duty may readily be implied in a relational contract. For example, in Bristol Groundschool Ltd v Intelligent Data Capture Ltd [2014] EWHC 2145 (Ch) the parties agreed to collaborate to produce training manuals for pilots. The claimant provided the content for the manuals and the defendant converted the content into an electronic application, which the parties jointly published and marketed. The parties fell out. Anticipating the end of their joint venture, the claimant secretly accessed the defendant’s database and downloaded material. After the contract was terminated, the claimant used the downloaded material to continue selling the electronic training manuals. One issue was whether the secret download was a breach of contract. There was no express term of the contract which prohibited it. But Mr Richard Spearman QC, sitting as a deputy High Court judge, characterised the joint venture agreement as a relational contract and held that there was an implied term of the contract requiring good faith in its performance. The defendant had breached that term by engaging in conduct that “would be regarded as commercially unacceptable by reasonable and honest people” (para 196).

In D&G Cars Ltd v Essex Police Authority [2015] EWHC 226 (QB) a private contractor had agreed to dispose of cars for a police authority. The police authority gave instructions for one particular vehicle to be completely crushed; but they later found out that, instead of sending it to be crushed, the contractor had re-built the car, transferred the number plates from a different vehicle, and was using it in the contractor’s own fleet. Dove J described the contract as “a relational contract par excellence” and held that it was an implied term that the contractor would perform the contract in good faith or – as he preferred to put it – with honesty and integrity. The judge concluded that, even if the contractor had not been deliberately fraudulent, there had been a breach of the implied term which amounted to a repudiatory breach of the contract.

There are other cases in which the implication of a duty of good faith has been rejected on the ground that the contract in question was not a relational contract. For example, in National Private Air Transport Services Co v Windrose Aviation Co [2016] EWHC 2144 (Comm), at paras 133-136, Blair J found (unsurprisingly) that an aircraft lease was not a relational contract and that no duty to act in good faith was to be implied into an obligation to redeliver the aircraft. But the judge also rejected an attempt to cast general doubt on the approach suggested in the Yam Seng case. Furthermore, in Globe Motors v TRW Lucas Varity Electric Steering Ltd [2016] EWCA Civ 396, [2016] 1 CLC 712 at para 67, Beatson LJ in the Court of Appeal endorsed the view that, in certain categories of long-term contract of the kind mentioned in the Yam Seng case, courts may be more willing to imply a duty of good faith – which he characterised essentially as a duty to cooperate.

In the Yam Seng case I mentioned that examples of such relational contracts might include some joint venture agreements and the Bristol Groundschool case is such an example. Of particular relevance to the facts of the present case, in Elliot v Wheeldon [1992] BCC 489, referred to in Murad v Al-Saraj, the Court of Appeal showed willingness to accept that a duty to act in good faith may arise in the context of a joint venture between shareholders. Nourse LJ, with whom the other members of the court agreed, said (at 492) that:
“where A and B enter into a joint venture for the carrying on of a business through the medium of company C, with A as the continuing guarantor of C’s liabilities, it must at the least be arguable that B owes a duty to A to conduct himself as a director of C in such a way as not, except in good faith, to increase A’s liabilities under his guarantee.”
Hewitt on Joint Ventures (6th Edn, 2016) at paras 11-09 to 11-17, a book edited by practitioners who specialise and have extensive experience in this area of commercial activity, contains a lengthy and helpful discussion of duties of good faith between joint venture parties. I note with interest the authors’ conclusion that “‘good faith’ and ‘fair dealing’ are concepts that at root seem entirely appropriate to very many joint venture relationships” and that:
“If findings of fiduciary duties in the fullest sense between joint venture parties will continue to be rare, principles relating to ‘good faith’ seem to fit a relationship between parties to a joint venture where mutual trust and commitment are crucial to the success of the venture …”
See Hewitt on Joint Ventures (6th Edn, 2016), para 11-17.’

‘Although there is no duty on a contracting party to reveal all known facts, in the case of some contracts, known as contracts uberrimae fidei, there is such a duty. These include contracts for insurance and family settlements . The right to rescind a contract applies both where the misrepresentation is fraudulent (which means a false statement made knowingly, or without belief in its truth, or reckless whether it is true or not) and where the misrepresentation is innocent (where the party making the misrepresentation honestly believes it to be true).’ Pearce, Robert and Warren Barr, page 805.

Breach of fiduciary duty may also give rise to a claim for negligent misstatement, and vice versa. As Lord Browne-Wilkinson stated in White v Jones [1995] 2 AC 207,
‘The law of England does not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable. However, such a duty of care will arise if there is a special relationship between the parties. Although the categories of cases in which such special relationship can be held to exist are not closed, as yet only two categories have been identified, viz. (1) where there is a fiduciary relationship and (2) where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice. In both these categories the special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff’s affairs or by choosing to speak. If he does so assume to act or speak, he is said to have assumed responsibility for carrying through the matter he has entered upon. In the words of Lord Reid in Hedley Byrne [1964] AC 465, 486 “he has accepted a relationship … which requires him to exercise such care as the circumstances require”, i.e. although the extent of the duty will vary from category to category, some duty of care arises from the special relationship. Such relationship can arise even though the defendant has acted in the plaintiff’s affairs pursuant to a contract with a third party.’

Contracts can also be set aside where they have been induced by undue influence. Fraudulent calumny is a form of undue influence. The Quiet Fiduciary Thesis proves that the cause of action is available in relation to a contract where breach of fiduciary duty is manifest in silence. The thesis therefore applies more widely to contract and commercial claims.

Bibliography
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