PROPRIETARY REMEDIES FOR BREACH OF FIDUCIARY DUTY

2014 ◽  
Vol 73 (3) ◽  
pp. 490-493
Author(s):  
Matthew Conaglen
Keyword(s):  
Hong Kong ◽  
Informed Consent ◽  
Supreme Court ◽  
Attorney General ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Trade Finance ◽  
The Supreme Court ◽  
English Law ◽  
Court Of Appeal

FHR bought a long lease for €211.5 million. Cedar Capital conducted the negotiations on FHR's behalf, but also received a €10 million commission from the vendor. On becoming aware of this commission, FHR sought to recover it from Cedar Capital. As its negotiating agent, Cedar Capital owed fiduciary duties to FHR, and had not obtained FHR's fully informed consent to the commission. Cedar Capital therefore had to account to FHR for the commission. However, applying the Court of Appeal's decision in Sinclair Investments (UK) Ltd. v Versailles Trade Finance Ltd. [2011] EWCA Civ 347, [2012] Ch. 453, Simon J. held that the remedy was purely personal; FHR could not assert a proprietary constructive trust over the €10 million: FHR European Ventures LLP v Mankarious [2011] EWHC 2999 (Ch). The Court of Appeal allowed an appeal as to remedy, distinguishing the facts from those in Sinclair v Versailles, but also casting some doubt on the correctness of that decision: [2013] EWCA Civ 17, [2014] Ch. 1. The Supreme Court was thus required to pass judgment on the voluminous debate as to whether English law should follow Lister & Co. v Stubbs (1890) 45 Ch.D. 1, or Attorney-General for Hong Kong v Reid [1994] 1 A.C. 324.

scholarly journals Extending The Scope Of Proprietary Remedies To Recovery Of Pure Profits From Successful Investment Of Bribes: The Endgame In Lister V Stubbs

2015 ◽  
Author(s):  
Aiman Nariman Mohd Sulaiman ◽  
Mohsin Hingun
Keyword(s):  
Hong Kong ◽  
Supreme Court ◽  
Common Law ◽  
Attorney General ◽  
Fiduciary Duty ◽  
Privy Council ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
Harsh Reality

For more than a century Lister v Stubbs (1890) 45 Ch D 1 stood as authoritative Court of Appeal judgment denying the recovery of profits acquired from the successful investment of gains obtained in breach of fiduciary duties. The rule was rationalized on the basis that while the claimant was entitled to the proceeds so unlawfully obtained, he lacked any form of proprietary title to the profits accumulated by the defaulting fiduciary. The harsh reality of the rule produced an unfair outcome to the claimant and the Privy Council refused to apply it in Attorney-General for Hong Kong v Reid [1994] 1 AC 324. The rule also fell out of favour in other leading commonwealth jurisdictions and recently the English courts at all levels had the opportunity to reassess its relevance when the Supreme Court in FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] 4 All ER 79 consigned it to oblivion. The objective of this paper is to analyse the merits and the deficiencies of the rule and show how the judges of the English courts were prepared to act on policy ground, in comity with other common law jurisdictions in upholding justice in a borderless world. Keywords: breach of Fiduciary duty; Accounts of profits; Proprietary interests; Recovery of pure profits.

Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana

1998 ◽  
Vol 42 (1) ◽  
pp. 37-63 ◽  
Author(s):  
A. K. P. Kludze
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Constitutional Interpretation ◽  
High Court ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.

Defining the Divine

2014 ◽  
Vol 16 (2) ◽  
pp. 198-204 ◽  
Author(s):  
Russell Sandberg
Keyword(s):  
Supreme Court ◽  
First Century ◽  
Registrar General ◽  
The Supreme Court ◽  
English Law ◽  
Twenty First Century ◽  
Court Of Appeal ◽  
The Church ◽  
Supreme Being

At first glance, it appeared to be a technical and dry decision about the operation of the Places of Worship Registration Act 1855, yet the Supreme Court judgment inR (on the Application of Hodkin) v Registrar General of Births, Deaths and Marriageswas actually one of the most significant decisions related to law and religion in 2013. The Justices of the Supreme Court held that a church within the Church of Scientology could be a ‘place of meeting for religious worship’ within section 2 of the 1855 Act. In so doing, the Supreme Court overruled one of the most well-known decisions in English religion law,R v Registrar General, ex parte Segerdal. InSegerdal, although the Court of Appeal had held that a chapel within the Church of Scientology could not be registered under the Act, the reasoning of their Lordships differed: Buckley LJ and Winn LJ focused on what they perceived to be the lack of ‘worship’, refusing to define the ‘chameleon word’ religion, while Lord Denning emphasised the phrase ‘religious worship’, holding that this required ‘reverence or veneration of God or a Supreme Being’ and that this was not met in the case of the Church of Scientology, which was ‘more a philosophy on the existence of man or of life than a religion’. All of these statements have been questioned by the bold Supreme Court judgment inHodkin, which provides guidance on how the terms ‘religion’ and ‘religious worship’ are to be understood by English law in the twenty-first century.

Corporate Fiduciary Duties and Prudential Regulation of Financial Institutions

2015 ◽  
Vol 16 (1) ◽  
Author(s):  
Edward M. Iacobucci
Keyword(s):  
Supreme Court ◽  
Financial Institutions ◽  
Financial Regulation ◽  
Fiduciary Duty ◽  
Court Cases ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
Recent Developments ◽  
Clear Statement ◽  
Fiduciary Liability

AbstractWhile corporate fiduciary duties in many jurisdictions are generally understood to be owed to shareholders, recent Canadian Supreme Court cases have held that directors owe their duties to the corporation, period, not to shareholders or any other stakeholders. This development has introduced significant indeterminacy to the law since it is not clear what such a conception of the duty requires. The Supreme Court did, however, make one clear statement: it held that directors owe a fiduciary duty to ensure that their corporations obey statutory law. Such a duty encourages compliance with law, but may over-encourage compliance: individual directors do not necessarily gain personally from legal breaches, but may lose personally from them because of fiduciary liability, so they will have excessively strong incentives to avoid such breaches. The Article connects the fiduciary duty to obey law with recent developments in financial regulation that have increased the obligations on directors of financial institutions to oversee risk. By requiring directors to be engaged with risk at a governance level, regulators have enhanced the probability that directors will face liability under their fiduciary duties if their institutions do not comply with financial regulations. As the Article explains, the policy tradeoff between enhanced compliance benefits and over-compliance costs of fiduciary liability is different in the context of financial regulation from that in other settings. For example, significant corporate penalties, as opposed to penalties borne by individual directors, may be inconsistent with the prudential goals of regulation, perhaps because of toobig- to-fail concerns. The fiduciary duty to cause the corporation to obey financial regulation, and a stricter application of this duty than the highly deferential standard that exists in Delaware law, has advantages that do not exist in other legal and regulatory contexts.

Calling Power to Account: Law, Reparations, and the Chinese Head Tax Case

2006 ◽  
Vol 39 (4) ◽  
pp. 961-962
Author(s):  
Peter Li
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Class Action ◽  
University Of Toronto ◽  
Legal Case ◽  
The Supreme Court ◽  
Chinese Canadians ◽  
Tax Payers ◽  
Law Professors ◽  
Court Of Appeal

Calling Power to Account: Law, Reparations, and the Chinese Head Tax Case, David Dyzenhaus and May Moran, eds., Toronto: University of Toronto Press, 2005, pp. 471.This is a collection of fifteen essays that addresses different aspects of the Chinese head tax case. Edited by two law professors and written mostly by lawyers and law professors, the collection has a strong legal flavour. The book begins with the legal case of Mack vs. Attorney General of Canada. However, the book does not provide a succinct summary of the case. In brief, the case involves three Chinese Canadians, Shack Jang Mack, Quen Ying Lee and Yew Lee, filing a statement of claim through their attorney in December, 2000, in a class action on behalf of head tax payers in the Ontario Superior Court. In all, the case went through three courts, and the original ruling dismissing the claim of head tax payers was upheld by the Court of Appeal and the Supreme Court.

Fiduciaries, bribes and constructive trusts—a policy-based justification

2019 ◽  
Vol 25 (8) ◽  
pp. 835-840
Author(s):  
Mark Belshaw
Keyword(s):  
Supreme Court ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
The Supreme Court ◽  
The Law

Abstract The Supreme Court in FHR European Ventures LLP v Cedar Capital Partners LLC [2015] AC 250 made clear that a fiduciary who breaches his fiduciary duties by receiving a bribe will hold that bribe on constructive trust for his principal. This article suggests that the law’s response to a breach of fiduciary duty is focused on the wrong of breach, rather than on enforcing the fiduciary’s primary duties. Viewed through this prism, a more thorough justification than that identified by the Supreme Court is necessary for imposing a constructive trust over a bribe. This article suggests that there is no principled reason for imposing a constructive trust, but that the justification is rooted in the policies underlying the entirety of the law of fiduciary duties—deterrence and prophylaxis.

scholarly journals Compensation and the Scope of Equity's Remedial and Restitutionary Generosity

1969 ◽  
Vol 37 (1) ◽  
pp. 114
Author(s):  
Paul M. Perell
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Civil Case ◽  
The Supreme Court ◽  
Court Of Appeal

Canson Enterprises Ltd. v. Boughton is a case about equity’s restitutionary remedies, including compensation for breach of fiduciary duty and compensation under the doctrines of knowing assistance and knowing receipt. It was an unusual civil case because it had two distinct phases that yielded two trial level judgments, two judgments of the British Columbia Court of Appeal, and an important judgment form the Supreme Court of Canada. The Canson case was extraordinary because there were significant changes from phase one to phase two in the factual foundation of the case, and these changes provided a novel opportunity to study the nature of equitable remedies and to develop instructive comparisons and contrasts. This article uses the Canson case as a vehicle to explore equitable compensation and the scope of equity’s remedial and restitutionary generosity.

scholarly journals Innovation, informed consent, health research and the Supreme Court: Montgomery v Lanarkshire – a brave new world?

2017 ◽  
Vol 12 (4) ◽  
pp. 435-452 ◽  
Author(s):  
Jean V. Mchale
Keyword(s):  
Informed Consent ◽  
Clinical Research ◽  
Supreme Court ◽  
Health Research ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Innovative Treatment ◽  
The Supreme Court ◽  
The Future ◽  
English Law

AbstractThe Supreme Court decision in Montgomery v Lanarkshire ([2015] UKSC11) has been hailed as a landmark not least because the Court enshrines the doctrine of informed consent formally into English law for the first time in relation to medical treatment. This paper explores the decision in Montgomery. It examines what its implications may be in the future for the consent process in relation to health research and innovative treatment and whether it may prove a watershed moment leading to changing dialogues and expectations in relation to consent. First, the paper explores the concept of ‘informed consent’ in clinical research as seen through international, Council of Europe and EU instruments. Second, it considers how English law currently governs the provision of information to research participants in the context of clinical research. It questions whether such an approach will be sustainable in the future. Third, it discusses the decision of the UK Supreme Court in Montgomery v Lanarkshire and asks what might be the impact of this Supreme Court decision in the health research context. It asks whether Montgomery may result in new approaches to consent in health research and innovative treatment.

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