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The branch of equity which deals with fiduciary relationships does not receive a great deal of attention in legal works, and what has been written is not usually very full or very precise. It is proposed, therefore, in this article, first, to explore something of the background and development of this topic, secondly, to discuss the problem of defining a fiduciary situation and, thirdly, to suggest, in outline at least, a classification of the relationships and the principles which apply to each class.
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1 Quoted in Maitland, , Equity (2nd ed., Brunyate, 1932), 7n.Google Scholar; cf. Coke Inst. iv, 84, 86.
2 Lord Thurlow in Gartside v. Isherwood (1788) 1 Bro.C.C. 558, 560, referring to Filmer v. Gott (1774) 4 Bro.P.C. 230.
3 According to Blackstone, the word was regularly used in courts of common law; see 3 Bl.Comm. 432, and cf. 33 Halsbury (Hailsham ed.) 87n., Coggs v. Bernard (1703) 2 Lord Raym. 909, Jones v. Lewis (1751) 2 Ves.Sen. 240.
4 (1742) 2 Atk. 400, 405 (italics in original omitted).
5 Ibid. 406.
6 Lord Macclesfield, in Duke of Beaufort v. Berty (1721) 1 P.Wms. 703, 704–705 (original italics). Cf. Lord Hardwicke in Scroggs v. Scroggs (1755) Amb. 272, 273.
7 Holdsworth (Vol. 12, 192–193) notes that the only systematic textbook of equity at the end of the eighteenth century was Fonblanque's edition of Ballow's Treatise of Equity (1793–95); but in the next few decades were published (interalia) Jeremy, Lewin, Maddock, Mitford, Seton and Story.
8 (1795) 8 Bro.P.C. 42, 64.
9 A solicitor employed as a judicial officer to supervise auction sales in Scottish liquidation proceedings.
10 Cholmondeley v. Clinton (1821) 4 Bli. 1, 96.
11 An early instance of the use of the word by a judge is in Bishop of Winchester v. Knight (1717) 1 P.Wms. 406, 407, per Cowper L.C., in proceedings by a landlord for an account of ore dug by a tenant: “…it is stronger in this case by reason that the tenant is a sort of fiduciary to the lord, and it is a breach of the trust which the law reposes in the tenant, for him to take away the property of the lord.” Other early examples include: Woodhouse v. Meredith (1820) 1 Jac. & W. 204, 213 (counsel); Oliver v. Court (1820) 8 Price 127, 143 (counsel); Cholmondeley v. Clinton (1820) 2 Jac. & W. 1, 183 (Plumer M.R.); Docker v. Somes (1834) 2 My. & K. 655, 665 (Lord Brougham); but use is uncommon before the 1850s. Much of the pioneering work was done by the textbook writers: Jeremy (1828), Lewin (1837), Maddock (3rd ed., 1837) and Story (2nd ed., 1839) all make use of the expression.
12 See, e.g. the learned editor of Maitland, Equity (note 1, supra), 229; 33 Halsbury (Hailsham ed.) 88 and references cited ibid. In the American Restatement of the Law of Trusts (2nd ed., 1959) Vol. 1, § 2, a trust is defined as a type of fiduciary relationship.
13 Re West of England and South Wales District Bank, ex p. Dale & Co. (1879) 11 Ch.D. 772, 778. The decision of Fry J. in this case was disapproved by the Court of Appeal in Re Hallett's Estate, Knatchbull v. Hallett (1880) 13 Ch.D. 696, but this passage was expressly approved by Jessel M.R. at 713.
14 Other “definitions” found in the authorities are not very helpful. Some are expressed vaguely in terms of “confidence”: e.g., Salmond and Williams, Contracts (1945), 280, 1 Halsbury (Simonds ed.), 182; but attempts to define “trust,” “confidence” and “fiduciary relationship” in terms of each other are unsatisfactory: cf. Maitland, Equity (note 1, supra), 43. Lord Greene M.R. in Re Diplock, Diplock v. Wintle [1948] Ch. 465, 540 resorted simply to illustrationsGoogle Scholar. The definition given by Asquith, L.J. in Reading v. R. [1949] 2 K.B. 232, 236 was not intended to be of general application.Google Scholar
15 The substantival use, accepted in America (where the usual counterpart is “beneficiary”) is adopted for convenience. There is English authority of considerable standing for the use as a noun: see note 11, supra.
16 Re Coomber, Coomber v. Coomber [1911] 1 Ch. 723, 728.Google Scholar
17 Ibid. 729.
18 Those English writers who tackle the question at all appear to adopt a purely arbitrary approach. Kerly, History of Chancery (1890), 202 says that a constructive trustee is not in a fiduciary position, and the learned editor of Maitland, Equity (note 1, supra), 229 appears to agree. Sheridan, Fraud in Equity (1957) includes undue influence, but rules out fraud on a power; Winder in “Undue Influence and Fiduciary Relationship” (1940) 4 The Conveyancer (n.s.) 274 excludes undue influence. None of these writers gives any explanation for his ruling. In Underhill, Trusts and Trustees (11th ed., 1959), 214 it is suggested that a relationship may be more or less fiduciary and that some rules will not apply unless “the agency is of an exceptionally fiduciary character,” but we are not told where to draw the line. Cf. also 1 Halsbury (Simonds ed.), 182.
19 It would undoubtedly be simpler to keep “fiduciary” as a comprehensive term, as most lawyers probably regard it; but the judges have very commonly based their reasoning on a finding that a party is or is not in a “fiduciary” position in such a way that their statements are intelligible only if the term is understood to have been used in a very special limited sense; cf. note 26 and note 57, infra.
20 There is possibly a fifth sense in which the word “fiduciary” might be used, in relation to the obligation of bankers, doctors, solicitors and others not to divulge confidential information. The authorities differ on the question whether the disclosure by A of information concerning B is properly regarded as a breach of a fiduciary obligation; modern cases are usually based on contract, express or implied, and the remedy sought is damages, or damages and an injunction. Cf. Tournier v. National Provincial Bank [1924] 1 K.B. 461Google Scholar, Carter v. Palmer (1842) 8 Cl. & F. 657, 707 and Robb v. Green [1895] 2 Q.B. 315. Of course, a fiduciary who uses information belonging to his beneficiary for his own profit (Regal (Hastings) Ltd v. Gulliver [1942] 1 All E.R. 378, 382Google Scholar) or sells it (Beaumont v. Boultbee (1802) 7 Ves. 599, 607–608) must account to his beneficiary, but these situations are covered by categories I and II in the text.
21 In the sense that he has power to dispose of it; whether he has authority to dispose of it is irrelevant. Cf. Kekewich J. in Re Barney, Barney v. Barney [1892] 2 Ch. 265, 276: “money under his control… means money which he can, if he will, put into his own pocket or pay away as he pleases to somebody else.”
22 The legal title may be in the fiduciary, the beneficiary or some third party.
23 e.g., the directors in Sinclair v. Brougham [1914] A.C. 398Google Scholar; see the judgment of Lord Parker at 441, and that of Viscount Haldane L.C. at 421. Some authorities would extend this rule so as to include any “conscious wrongdoer” (Scott, “Constructive Trusts” (1955) 71 L.Q.R. 39, 48), e.g. a thief of money or negotiable securities; but the better view would appear to be that, although there is a “continuing right of property” (Re Diplock, Diplock v. Wintle [1948] Ch. 465, 520Google Scholar) sufficient to invoke the doctrine of tracing there is not, without more, a fiduciary relationship. Scott, op. cit., seems to support this view. Perhaps the rule stated in the text is confined to borrowing transactions; cf. Buckley on the Companies Acts (13th ed., 1957), 25.Google Scholar
24 See pp. 80–81, infra; cf. Sinclair v. Brougham [1914] A.C. 398, 420.Google Scholar
25 R. Leslie Ltd. v. Shiell [1914] 3 K.B. 607, 618Google Scholar, per Lord Sumner.
26 The scope of the original equitable jurisdiction in account was often an issue in cases of agency. Account lay in equity against an agent on three principal grounds: (i) that the accounts were mutual; (ii) that they were complicated; (iii) that there existed a fiduciary relationship. In (iii) the obligation was to account as trustee; in (i) and (ii), as debtor. See Ashburner, Principles of Equity (2nd ed., 1933), 349; Brunyate, Limitation of Actions in Equity (1932) 91; Foley v. Hill (1848) 2 H.L.Cas. 28; Phillips v. Phillips (1852) 9 Hare 471.
27 See, however, note 23, supra.
28 Secus in early law: see, e.g., Grosvenor v. Cartwright (1679) 2 Ch.Cas. 21; Linch v. Cappy (1680) 2 Ch.Cas. 35; Bromfield v. Wytherley (1718) Prec.Ch. 505. Other rules connected with that stated in the text are: first, if “trust” money is mixed with other moneys in a bank account, drawings are governed by the rule in Re Hallett's Estate, Knatchbull v. Hallett (1880) 13 Ch.D. 696 and not by the rule in Clayton's Case (1816) 1 Mer. 572; secondly, the rule that a trustee cannot set off losses against gains does not apply where the losses and gains result from wrongful dealings with the same item of “trust” property. See Hanbury, Modern Equity (7th ed., 1957), 270–271.
29 Cf. Charitable Corpn. v. Sutton (1742) 2 Atk. 400, and Lord Hatherley L.C. in Overend Gurney & Co. v. Gurney (1869) L.R. 4 Ch.App. 701, 713; Potter, History of Equity and its Courts (1931), 86–87.
30 Cf. Lister & Co. v. Stubbs (1890) 45 Ch.D. 1, 15, per Lindley L.J.
31 Cf. Burdick v. Garrick (1870) L.R. 5 Ch.App. 233, 243, per Giffard L.J.; Metropolitan Bank v. Heiron (1880) 5 Ex.D. 319, 325, per Cotton L.J.; Lyell v. Kennedy (1889) 14 App.Cas. 437, 463, per Lord Macnaghten; Ashburner (op. cit., note 26, supra), 510; Brunyate (op. cit., note 26, supra), 50 et seq.; Preston and Newsom. Limitation of Actions (3rd ed., 1953), 174–176
32 [1949] K.B. 232, 236.
33 Cf. Scott, “The Fiduciary Principle” (1949) 37 Calif.L.R. 539, 540: “A fiduciary is a person who undertakes to act in the interest of another person. It is immaterial whether the undertaking is in the form of a contract. It is immaterial that the undertaking is gratuitous”; and Lord Macnaghten in Lyell v. Kennedy (1889) 14 App.Cas. 437, 463 (speaking of a “category I” fiduciary): “Nor do I think it can make any difference whether the duty arises from contract or is connected with some previous request, or whether it is self-imposed and undertaken without any authority whatever.”
34 A promoter is sometimes estopped from denying that he was at some material time acting on behalf of a company which he has later formed: Hichens v. Congreve (1831) 4 Sim. 420; Gluckstein v. Barnes [1900] A.C. 240; cf. Benson v. Heathorn (1842) 1 Y. & C.C.C. 326, 340.
35 As in the promoter cases.
36 Att.-Gen. v. Goddard (1929) 98 L.J.K.B. 743Google Scholar; Reading v. Att.-Gen. [1951] A.C. 507.Google Scholar
37 Whichcote v. Lawrence (1798) 3 Ves. 740, 750; cf. Ex p. Lacey (1802) 6 Ves. 625, 626, per Lord Eldon.
38 e.g., Rothschild v. Brookman (1831) 5 Bli.(n.s.) 165.
39 Fox v. Mackreth (1788) 2 Cox 320; Ex p. James (1803) 8 Ves. 337; Reed v. Norris (1837) 2 My. & Cr. 361. The same duty is owed by a surety.
40 See Att.-Gen. v. Goddard and Reading v. Att.-Gen., note 36, supra; Fine Industrial Commodities Ltd. v. Powling (1954) 71 E.P.C. 253.Google Scholar
41 (1726) Sel.Cas.t.King 61.
42 Apparently renewable by custom: see Norris v. Le Neve (1743) 3 Atk. 26, 38, per Lord Hardwieke.
43 Cf. the learned editor's note in Maitland, Equity (note 1, supra), 82.
44 The rule includes, in some circumstances, the acquisition of a reversion: Phillips v. Phillips (1885) 29 Ch.D. 673.
45 Cf. 2 White and Tudor's Leading Cases in Equity (9th ed., 1928) 649, 654Google Scholaret seq.; Hanbury, Essays in Equity (1934), 49; Hart, “The Development of the Rule in Keech v. Sandford” (1905) 21 L.Q.R. 258, 261; semble, Parker, J. in Griffith v. Owen [1907] 1 Ch. 195, 203–204.Google Scholar
46 e.g., (semble) Collins, M.R. in Re Biss, Biss v. Biss [1903] 2 Ch. 40Google Scholar; counsel in Griffith v. Owen [1907] 1 Ch. 195. 202.Google Scholar
47 e.g., Romer, L.J. in Re Biss, Biss v. Biss [1903] 2 Ch. 40, 61Google Scholar; Spence, The Equitable Jurisdiction of the Court of Chancery (1849) Vol. II, 298 et seq.; Lewin, The Law of Trusts (15th ed., 1950), 155 et seq.
48 In the time of Lord Eldon, it is probable that the two cases would have been treated alike as breaches of “confidence.”
49 e.g., fairness may be relevant in cases of undue influence, but not in cases based on the fiduciary principle: see 17 Halsbury (Simonds ed.) 674.
50 Pace Winder, op. cit. (note 18, supra), who is unwilling to admit any suggested connection between “confidence” or fiduciary relationships and the doctrine of undue influence—even to the extent of describing some remarks of Lord Chelmsford as “unfortunate,” and James L.J. as “ensnared by the analogy” (282); but, with respect, the learned contributor's view is inconsistent with a long line of authorities going back to Eldonian times.
51 e.g., Vinter, Law of Fiduciary Relationship and Resulting Trusts (3rd ed., 1955), passim, Salmond and Williams, Contracts (1945), 291 (where the use in the sense of the next note is also suggested); semble, Sheridan (op cit., note 18, supra), 87–88.
52 e.g., Powell v. Powell [1900] 1 Ch. 243Google Scholar; cf. Re Coomber, Coomber v. Coomber [1911] 1 Ch. 723Google Scholar; Tufton v. Sperni [1952] 2 T.L.R. 516Google Scholar; Ashburner, (op. cit., note 26, supra), 303–304 (but cf. editor's note, 304); Snell, Principles of Equity (25th ed., 1960), 496–501.
53 e.g., 17 Halsbury (Simonds ed.), 678.
54 e.g., 17 Halsbury (Simonds ed), 678; Smith v. Kay (1859) 7 H.L.Cas. 750, 771, per Lord Cranworth; Tate v. Williamson (1866) L.R. 2 Ch.App. 55, 60–61, per Lord Chelmsford.
55 Tufton v. Sperni (note 52, supra). Snell (op. cit., note 52, supra), 498–499 lists the following relationships as affected by the presumption: parent and child, guardian and ward, fiancé and fiancée (but not husband and wife), religious, medical and other advisers and those who consult them, solicitor and client. As regards fiancés, however, see now Zamet v. Hyman [1961] 1 W.L.R. 442.Google Scholar
56 Accepting, for the purpose of the present discussion, the more significant uses in categories III and IV.
57 Hence the rather misleading statements in 14 Halsbury (Simonds ed.), 625n.: “an agency is not necessarily fiduciary” (cf. 1 Halsbury (Simonds ed.), 182) and Piddocke v. Burt [1894] 1 Ch. 343, 346: “it is not every agent who is fiduciary.” These statements fail to distinguish between the different meanings of the term: an agent is always a fiduciary in sense II—he may not take a bribe—but is not necessarily a fiduciary in sense I, i.e., accountable as a trustee for property which he receives.
58 Cf. Brunyate (op. cit., note 26, supra), 80 et seq.; Maitland (op. cit., note 1, supra), 230–232; Preston and Newsom (op. cit., note 31, supra), 174–176; 1 Halsbury (Simonds ed.), 182, 187, 189; Langdell, Equity Jurisdiction (2nd ed., 1908), 92–97; Hanbury, Modern Equity (7th ed., 1957), 291.
59 Cf. Reid-Newfoundland Co. v. Anglo-American Telegraph Co. Ltd. [1912] A.C. 555.Google Scholar
60 Cf. Lyell v. Kennedy (1889) 14 App.Cas. 437, 457; Henry v. Hammond [1913] 2 K.B. 515, 521.Google Scholar
61 Cf. Henry v. Hammond, ibid.; Foley v. Hill (1848) 2 H.L.Cas. 28. Mention should perhaps be made of the well-established distinction between cases of general agency (where the presumption is that the agent holds as trustee) and single agency transactions (where he is normally regarded as a debtor): Makepeace v. Rogers (1865) 4 De G.J. & S. 649, 654.
62 Cf. Brunyate (op. cit., note 26, supra), 87; Langdell (op. cit., note 58, supra), 92–93.
63 Cf. Metropolitan Bank v. Heiron (1880) 5 Ex.D. 319; Lister & Co. v. Stubbs (1890) 45 Ch.D. 1.
64 Cf. Rothschild v. Brookman (1831) 5 Bli.N.S. 165.
65 Cf. Henry v. Hammond [1913] 2 K.B. 515, 522Google Scholar; New Zealand and Australian Land Co. v. Watson (1881) 7 Q.B.D. 374, 383.
66 See the authorities referred to in notes 62 and 65, supra.
67 See Brunyate (op. cit., note 26, supra), 86–87. In early law, the presumption was otherwise: cf. Foley v. Hill (1848) 2 H.L.Cas. 28, 35.
68 See Brunyate (op. cit.), 82, 87–89, and the authorities there cited.
69 Note 16, supra.
70 It is hoped to examine this subject further in a later article and, in particular, to discuss Nocton v. Lord Ashburton [1914] A.C. 932 andGoogle ScholarWoods v. Martin's Bank, Ltd. [1959] 1 Q.B. 55.Google Scholar
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