swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Agency - From: 1996 To: 1996
This page lists 4 cases, and was prepared on 02 April 2018.
Mothew (T/a Stapley and Co) v Bristol and West Building Society Times, 02 August 1996; [1996] EWCA Civ 533; [1998] Ch 1; [1997] 2 WLR 436; [1996] 4 All ER 698
24 Jul 1996
CA
Millett LJ
Professional Negligence, Legal Professions, Equity, Agency
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust. Held: A claim for damages for a solicitor's failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: "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."
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: "A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as 'the double employment rule.'" and
"Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability."
As to breach of the duty: "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."
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as "primarily restitutionary or restorative rather than compensatory".
1 Citers
[ Bailii ]
Mohammed v G H Cook Grosvenor Byde Limited [1996] EWCA Civ 810
25 Oct 1996
CA
Insurance, Agency
[ Bailii ]
Dowling Kerr Limited v Thomas Scott [1996] EWCA Civ 898
7 Nov 1996
CA
Agency
Estate agents commission on sale.
[ Bailii ]
Mak v Wocom Commodities Limited [1996] UKPC 40
11 Nov 1996
PC
Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Nolan, Lord Nicholls of Birkenhead, Sir John May
Financial Services, Agency, Commonwealth
(Hong Kong) The appellant had placed foreign exchange transactions with the respondents. He claimed that they were acting as his agents, and claimed that they had made undisclosed profits. They claimed to have been acting as principals. He now appealed a finding that he knew that they were so acting. Held: The issue turned on the credibility of witnesses. Where there had been to consistent findings of fact in the lower courts, the settled procedure of the Board was not itself to make such an assessment. Matters such as the weight to be attached to particular evidence did not come within any exception to that rule.
1 Cites
[ Bailii ]
