Legal Analysis of Fiduciary Duties & Profit Recovery in Trusts, Lecture notes of Law

Download Legal Analysis of Fiduciary Duties & Profit Recovery in Trusts and more Lecture notes Law in PDF only on Docsity! Breach of Fiduciary Duty, Equitable Wrongs and Proprietary Remedies: Implications for Commercial Agents. Sukhninder Panesar Head of Law School University of Wolverhampton Introduction Lord Herschell once wrote that ‘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. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect.’ 1 The purpose of this article is to explore exactly how inflexible this rule is in the context of commercial parties who stand in a fiduciary relationship to others. In particular two areas are examined, firstly; commercial fiduciaries who have received a secret bribe or some other profit in the course of their employment. Secondly; commercial parties who, although not having assumed fiduciary duties to a particular commercial principal, have nevertheless assisted in a breach of fiduciary duty by some other person and in doing so have made a profit. In both cases, can the person against who the breach had been committed claim a proprietary right to the profits in the hands of the wrongful fiduciary? Furthermore, and more importantly in the context of this article, how far does it matter that the profit made by the fiduciary has been made in circumstances where 1 [1896] AC 44 at 51. there has been no actual misuse of the principal’s own property. Put in another way, it is possible to disgorge profits not made at the expense of the claimant in the strict sense? This article will be particularly relevant to commercial lawyers advising their clients who may well have acted as agents in a commercial transaction and received incidental profits which, have neither been disclosed to other parties in the same transaction, and neither been made at the expense of the claimant now seeking a claim to such profits. Profits and Proprietary Claims. A proprietary claim to unauthorised gains or profits made by a fiduciary is usually made by the imposition of a constructive trust on the profit or unauthorised gain. The imposition of a constructive trust will confer upon a beneficiary of the constructive trust both proprietary and personal claims. A proprietary claim will arise because some property has been subjected to the trust. The beneficiary will be entitled to the property and any interest which is earned on it. For example, if a person standing in a fiduciary relationship breaches his fiduciary duty and acquires some property at the expense of his beneficiary, he will hold such property on constructive trust for the beneficiary. The beneficiary will acquire an equitable property interest in the property acquired in breach of fiduciary duty. So long as that property is in the hands of fiduciary or some other third party who cannot purport to show that it is a bona fide purchaser of the legal title without notice of the trust, the beneficiary will be able to claim it through the process of tracing and following. The matter is neatly illustrated by the decision of the Privy Council in A-G for Hong Kong v Reid 2 where a senior public prosecutor in Hong Kong received large sums of money to obstruct prosecutions. The bribe money was invested in freehold properties in New Zealand, which the Crown sought to recover on the grounds that they were held on constructive trust. Unlike a proprietary claim, a personal claim on the other hand will only confer upon the beneficiary a right to recover the value of the property which is the subject matter of the constructive trust along with any income that has been generated on that 2 [1994] 1 A.C. 324 other creditors of the agent. 8 Lord Templeman attempted to reject both the theoretical and policy consideration by offering alternative theoretical and policy arguments. In respect of the policy argument, Lord Templeman explained that ‘bribery [was] an evil practice which threatened the foundations of any civilised society’ 9 and, therefore, it was important for the persons against whom the bribe was made to recover the bribe given the loss and damage that had been caused as a result of the bribe. For example, in the present case the harm caused to the administration of justice in Hong Kong. In so far as the rationale or the theoretical grounds for the imposition of a constructive trust on the bribed money, Lord Templeman explained that as soon as the money was received by the defendant, the defendant was under an immediate obligation to hold it for the claimant. In the words of his Lordship ‘…as soon as the bribe was received it should have been paid or transferred instanter to the person who suffered from the breach of duty. Equity considers as done that which ought to have been done. As soon as the bribe was received, whether in cash or in kind, the false fiduciary held the bribe on a constructive trust for the person injured’ 10 In so far as the rationale or the theoretical grounds for the imposition of a constructive trust on the bribed money, Lord Templeman explained that as soon as the money was received by the defendant, the defendant was under an immediate obligation to hold it for the claimant. In the words of his Lordship ‘…as soon as the bribe was received it should have been paid or transferred instanter to the person who suffered from the breach of duty. Equity considers as done that which ought to have been done. As soon as the bribe was received, whether in cash or in kind, the false fiduciary held the bribe on a constructive trust for the person injured. Two objections have been raised to this analysis. First it is said that if the fiduciary is in equity a debtor to the person injured, he cannot also be a trustee of the bribe. But there is no reason why equity should not 8 Seem R. Goode, ‘Property and Unjust Enrichment’ in Essays on the Law of Restitution ed. Burrows (1991); R. Goode, ‘Proprietary Restitutionary Claims’ in Restitution: Past, Present and Future ed. Cornish (1998) and also D. Cowan, ‘Lister & Co v Stubbs: Who Profits’ (1996) J.B.L. 22. 9 [1994] 1 A.C. 324 at 331. 10 [1994] 1 A.C. 324 at 331. provide two remedies, so long as they do not result in double recovery. If the property representing the bribe exceeds the original bribe in value, the fiduciary cannot retain the benefit of the increase in value which he obtained solely as a result of his breach of duty. Secondly, it is said that if the false fiduciary holds property representing the bribe in trust for the person injured, and if the false fiduciary is or becomes insolvent, the unsecured creditors of the false fiduciary will be deprived of their right to share in the proceeds of that property. But the unsecured creditors cannot be in a better position than their debtor. The authorities show that property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally whether he is solvent or insolvent. Property acquired by a trustee as a result of a criminal breach of trust and the property from time to time representing the same must also belong in equity to his cestui que trust and not to the trustee whether he is solvent or insolvent.’ 11 The Court of Appeal in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (In Administration) Despite the decision of the Privy Council in Attorney-General for Hong Kong v Reid, 12 the Court of Appeal in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (In Administration) 13 had put serious doubt on the correctness of that decision. In particular, the Court of Appeal had rejected that there was a wide principle which holds that bribes and other unauthorised profits are held on a constructive trust thereby giving a claimant a proprietary claim to the profits. The facts of this case involved a fraud by a certain Mr Cushnie who controlled a group of companies called the Versailles Group plc. One of the companies in the group, Versailles Trading Finance Ltd (VTFL) was engaged in trade finance. Despite that, the company was more involved in orchestrating a massive fraud against a number of traders who were encouraged to advance money which would be held by a company called Trading Partners Ltd (TPL) for the purpose of trading activities. In addition money was also raised through two further companies in the group, the first called 11 [1994] 1 A.C. 324 at 331. 12 [1994] 1 AC 324. 13 [2011] EWCA Civ 347. Versailles Group plc (VGP) in which Mr Cushnie had a substantial holding and another called Versailles Trading Finance Ltd (VTFL) which issued debentures to a number of bank raising money by charges on the assets of that company. Fraud was carried out against the banks and the traders by Mr Cushnie who authorised the use of the money for purposes other than trading. In fact, the money was moved from one company to another company within the same group thereby showing profits within the Versailles Group which in turn had the effect of increasing the share price of the Versailles Group. Mr Cushnie sold the shares at a considerable profit and purchased personal assets including a house in London. TPL was assigned to an investor called Sinclair Investments Holdings which, on discovery of the fraud, commenced proceedings to claim proprietary rights to the profits and the house as representing unauthorised gains made at its expense. Sinclair Investments argued that Mr Cushnie owed fiduciary duties to TPL and that the money used from TPL was used in breach of trust. The question before the High Court and eventually the Court of Appeal was whether Mr Cushnie, acting in breach of fiduciary duty, held the profits on a constructive trust thereby giving the claimant a proprietary right or whether there was a personal claim only. The Court of Appeal and Lord Neuberger were clearly of the opinion that no proprietary claim could arise where a fiduciary had made a profit in breach of his duties, however, where the beneficiaries could not show that the profits represented the property originally belonging to the beneficiaries. In other words, where the beneficiaries could not show a proprietary base to the profits. Lord Neuberger explained that ‘a beneficiary of a fiduciary's duties cannot claim a proprietary interest, but is entitled to an equitable account, in respect of any money or asset acquired by a fiduciary in breach of his duties to the beneficiary, unless the asset or money is or has been beneficially the property of the beneficiary or the trustee acquired the asset or money by taking advantage of an opportunity or right which was properly that of the beneficiary.’ 14 14 [2011] EWCA Civ 347 at para. 88. Furthermore, in line with other Commonwealth jurisdictions, it was correct to hold that an unauthorised gain made by a fiduciary was held on constructive trust for the principal. In addressing the issue whether it mattered whether there was some proprietary connection with the unauthorised gain and the principal, Lord Neuberger explained that ‘the notion that the Rule should not apply to a bribe or secret commission received by an agent because it could not have been received by, or on behalf of, the principal seems unattractive. The whole reason that the agent should not have accepted the bribe or commission is that it puts him in conflict with his duty to his principal. Further, in terms of elementary economics, there must be a strong possibility that the bribe has disadvantaged the principal. Take the facts of this case: if the vendor was prepared to sell for euro;211.5m, on the basis that it was paying a secret commission of €10m, it must be quite likely that, in the absence of such commission, the vendor would have been prepared to sell for less than €211.5m, possibly €201.5m.’ 17 Lord Neuberger further commented that it ‘appears that other common law jurisdictions have adopted the view that the Rule applies to all benefits which are obtained by a fiduciary in breach of his duties. In the High Court of Australia, Deane J said in Chan v. Zacharia (1984) 154 CLR 178 , 199 that any benefit obtained “in circumstances where a conflict …. existed … or … by reason of his fiduciary position or of opportunity or knowledge resulting from it … is held by the fiduciary as constructive trustee”. More recently, the Full Federal Court of Australia has decided not to follow Sinclair : see Grimaldi , where the decision in Reid was preferred – see the discussion at paras 569-584. Although the Australian courts recognise the remedial constructive trust, that was only one of the reasons for not following Sinclair . As Finn J who gave the judgment of the court said at para 582 (after describing Heiron and Lister as “imposing an anomalous limitation … on the reach of Keech v Sandford ” at para 569), “Australian law” in this connection “matches that of New Zealand …, Singapore, United States jurisdictions … and Canada”. As overseas countries secede from the jurisdiction of the Privy Council, it is inevitable that inconsistencies in the common law will develop between different jurisdictions. However, it seems to us highly desirable for all those jurisdictions to learn from each 17 [2014] UKSC 45 at para. 35. other, and at least to lean in favour of harmonising the development of the common law round the world.’ 18 The decision FHR European Ventures LLP and others v Cedar Capital Partner LLC.is to be welcomed as bringing certainty into this area of the law. There are a number of reasons why the decision is to be welcomed. In the first place, the decision finally resolves the uncertainty that had been created in the existing cases where the courts had either given a proprietary claim or in other situations a mere personal claim. This decision established certainty in legal principle. In the opinion of the Supreme Court clarity and certainty in the law was a much desired need and in this context there could be no real justification in distinguishing those situation where an agent made an unauthorised gain at his principal’s expense and those situations where the agent received some bribe from a third party, not necessarily at the principal’s expense in the true sense. In both cases, the gain was held on trust for the principal. Secondly, the decision gives support to the established principle in equity that those who stand in fiduciary relationships to others must not allow a conflict of interest to exist. Should that conflict of interest exist then equity will be take a strict approach to prevent this from happening. One is reminded of the words of Lord Herschell who once wrote that ‘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 not allowed to put himself in a position where his duty and interest conflict. It does not appear to me that this rule is, as has bee said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is a danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this general rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing.’ 19 Proprietary Claims Against a Dishonest Assistant 18 [2014] UKSC 45 at para. 45. 19 Bray v. Ford [1896] A.C. 44 at 51. It is clear that a person who dishonestly assists in a breach of trust will be required to make good the loss through a personal claim brought by the beneficiary. What remained unclear until the decision of the Court of Appeal in Novoship (UK) Limited & ors v Nikitin & ors 20 was whether an account of profits was available against a person who dishonestly assisted in a breach of fiduciary duty, however, where there was no misapplication of the trust property or property belonging to the principal? In other words, can there be a constructive trust over the profit made by the dishonest assistant? The facts of Novoship (UK) Limited & ors v Nikitin & ors involved a complex fraud carried out be an agent, Mr Mikhaylyuk, who was employed to negotiate charter contracts for his principal. The agent had been assisted by a certain Mr Nikitin in offering charter contracts to third parties who in return paid secret commissions to Mr Mikhaylyuk. In return Mr Mikhaylyuk entered into charter contracts with a company owned by Mr Nikitin. The contracts had been negotiated at market rates and, therefore, the principal, Novoship (UK) Ltd had not made losses. Rather, the allegations were that both Mr Mikhaylyuk and Mr Nikitin had operated a dishonest scheme in receiving secret commissions in offering contracts to selective third parties other than the normal customers of Novoship (UK) Ltd. There was no question that Mr Mikhaylyuk was acting in breach of fiduciary duty in receiving secret profits by offering selective contracts and that Mr Nikitin had dishonestly assisted in such a breach. The question before the Court of Appeal was whether Novoship (UK) Ltd could ask for an account of profits from Mr Nikitin who had dishonestly assisted in the breach of fiduciary duty but in circumstances where Novoship (UK) Ltd had no made a personal loss. The Court of Appeal held that even though Novoship (UK) Ltd had not made a loss, it was possible that they could be entitled to an account of profits from a person who had dishonestly assisted in a breach of fiduciary duty and in doing so made a profit. However, in such claims for an account of profit from the dishonest assistant, it was imperative to show that there was a causal relationship between the profit and the dishonest assistance. The Court of Appeal holding that common law principles of causation and remoteness of damage applying to such situations. 20 [2014[ EWCA Civ 908. The case facts are analysed in detail by Tom K.C. Ng ‘Disgorgement Remedy for Dishonest Assistance’ Trust and Trustees (2015) Vol.21 Issue 5 at 571-578.