Fiduciaries Flashcards
Are fiduciary duties negative, positive, or both?
They are negative duties.
Are all duties owed by fiduciaries fiduciary duties?
No.
What are 7 examples of necessarily fiduciary relationships?
1) Trustee and beneficiary; 2) gurdian and ward; 3) agent and principle; 4) partner and co-partner; 5) solicitor and client; 6) director and company; 7) government employee and crown.
For a fiduciary what is the elements of a proper exercise of discretion?
1) Must exercise discretion only for proper purposes; and 2) to remove temptation for improper exercise.
What is the general rule regarding fiduciaries? Which case illustrates this?
A fiduciary must not profit from their position or have conflicting interests or duties unless the principle has given informed consent or if authorised by statute or the court (Bray v Ford).
If the fiduciary only profits for the benefit without consent is that a breach? Which case illustrates this?
It is a breach because the intention of a non-authorised profiting by fiduciary is irrelevant (Keech v Sandford).
What is the standard of liability for breach of a fiduciary duty? Which case illustrates this?
Strict liability (Regal (Hastings) Ltd v Gulliver).
What remedied are available for the breach of a fiduciary duty?
1) Account of profits; 2) constructive trust; 3) rescission of transaction; 4) equitable compensation.
What are relationships of ‘trust and confidence’? Which case illustrates this?
Relationships that are not presumed to be fiduciary until evidence is provided (McWilliam v Norton Finance (UK) Ltd).
For discretionary fiduciaries what does ‘exercising discretion for proper purposes’ mean?
It means exercising discretion for the best interest for the purpose given in the trust.
What are other duties owed by fiduciaries?
1) obey instructions; 2) take care; 3) exercise discretion properly; and 4) use confidential information properly.
Does an honest misrepresentation need to cause damage for the misrepresenting party to be liable?
Yes.
What breaches a fiduciary duty? Mention cases where relevant.
1) unauthorized profits (Boardman v Phipps); 2) fair dealing; and 3) self dealing.
What is fair dealing?
When fiduciary deals with beneficiary.
When fair dealing happens what can the beneficiary do?
Rescind the transaction.
For the purposes of fair dealing, what are the defenses available to the fiduciary to stop rescission?
If the fiduciary can show 1) full disclosure to beneficiary; 2) beneficiary did not rely solely on fiduciary’s advice; and 3) price of dealing was fair.
What is self-dealing?
When fiduciary is involved in making decisions on both sides of the transaction.
What are the elements for breach of confidence?
1) The receiving of confidential information; 2) a duty to use it in a certain limited way; and 3) misuse of that info in the breach of duty.
What is confidential information?
Information that is not public knowledge.
If some components are not confidential is it still possible for the information to be considered confidential? Which case illustrates this?
Yes (Douglas v Hello!).
What happens when confidential information is disclosed to the public? How is it different than when it is disclosed under a breach?
It ceases to be confidential even if disclosure is through breach.
How is the duty of confidence created?
Often by contract, could happen by undertaking.
When one appreciates confidentiality but does not undertake it or is contracted to keep the confidence can liability arise? Which case illustrates this?
Yes liability can arise (Coogan v News Group Newspaper Ltd).
If notice of confidentiality arises later after information has been given can liability arise? Which case illustrates this?
Yes it can arise (Franklin v Giddins).
