Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties

by Matthew Conaglen

Overview

Winner of the second SLS Peter Birks Prize for Outstanding Legal Scholarship 2010.

Fiduciary Loyalty presents a comprehensive analysis of the nature and function of fiduciary duties. The concept of loyalty, which lies at the heart of fiduciary doctrine, is a form of protection which is designed to enhance the likelihood of due performance of non-fiduciary duties, by seeking to avoid influences or temptations that may distract the fiduciary from providing such proper performance.

In developing this position, the book takes the novel approach of putting to one side the difficult question of when fiduciary duties arise in order to focus attention instead on what fiduciary duties do when they are owed. The issue of when fiduciary duties arise can then be returned to, and considered more profitably, once a clear view has emerged of the function that such duties perform.

The analysis advanced in the book has both practical and theoretical implications for understanding fiduciary doctrine. For example, it provides a sound conceptual footing for understanding the relationship between fiduciary and non-fiduciary duties, highlighting the practical importance of analysing both forms of duties carefully when considering fiduciary claims. Further, it explains a number of tenets within fiduciary doctrine, such as the proscriptive nature of fiduciary duties and the need to obtain the principal's fully informed consent in order to avoid fiduciary liability. Understanding the relationship between fiduciary and non-fiduciary duties also provides a solid foundation for addressing issues concerning compensatory remedies for their breach and potential defences such as contributory fault. The distinctive purpose that fiduciary duties serve also provides a firm theoretical basis for maintaining their separation from other forms of civil obligation, such as those that arise under the law of contracts and of torts.

Product Details

ISBN-13:	9781849462143
Publisher:	Bloomsbury Academic
Publication date:	08/25/2011
Pages:	332
Product dimensions:	6.10(w) x 9.10(h) x 0.90(d)

About the Author

Matthew Conaglen is a Reader in Equity and Trusts at the University of Cambridge and a Fellow of Trinity Hall. He is an Academic Member of the Chancery Bar Association and has practised as a barrister and solicitor in New Zealand. His PhD at Cambridge, on the nature and function of fiduciary duties, was awarded the Yorke Prize and he has published extensively in that area and in others.

Table of Contents

Preface v

Table of Cases xiii

Table of Legislation xliii

1 Prologue 1

2 Points of Departure 7

I Form of Analysis 7

II Subject Matter of Analysis 11

A Historical Analogies 11

B Modern Approach 16

i Genesis and Gestation 16

ii Justification 18

3 Peculiarly Fiduciary Duties 32

I Duty to Perform the Task Undertaken 32

II Duties of Care and Skill 35

III Conflict and Profit Principles 39

IV Good Faith 40

V Proper Purposes Doctrine 44

VI Fiduciary Powers 50

VII Duty to Act in Good Faith in the Principal's Best Interests 54

4 Fiduciary Loyalty 59

I Introduction 59

II Subsidiary Prophylactic Protection 59

A Protective Function 61

B Prophylaxis 62

C Subsidiarity 67

III Remedies 75

A Rescission and Profit-Stripping 76

i Rescission 76

ii Accounts of Profits and Constructive Trusts 76

iii Connection with Fiduciary Protection 79

B Compensation for Loss 80

i Availability 85

ii Causation and Loss 90

iii Connection with Fiduciary Protection 94

IV Critics 97

5 Fiduciary Doctrine and Morality 106

I General Observations 107

II The Argument from History 109

III The Profit Principle 113

A Existence of the Profit Principle 114

B Relationship to the Conflict Principle 120

IV The Fair-Dealing Rule 125

A The Self-Dealing Rule 126

B The Fair-Dealing Rule 128

i References to 'Fairness' 129

ii Non-Critical Relevance of 'Fairness' 130

iii Fairness as Evidence of Full Disclosure 135

iv Relationship to the Self-Dealing Rule and Conflict Principle 138

V The Corporate Opportunity Doctrine 139

6 Conflicts between Inconsistent Duties 142

I Origins 143

II Content and Function 146

A Potential Conflicts 147

B Actual Conflicts 149

C Inhibition 150

i Pattern of Liability 152

ii Function 153

III Remedies 158

A Stopping Further Action 158

B Rescission of Resultant Transaction 159

C Forfeiture of Fees and Other Profits 161

i Fees Paid by the Non-claimant Principal 161

ii Fees Paid by the Claimant Principal 162

D Equitable Compensation 164

i Availability and Function 164

ii Identifying Loss 165

iii Contributory Fault 172

7 Implications 177

I Scope of Fiduciary Duties 177

II The Vital Nature of Non-fiduciary Duties 185

A Consequence of the Protective Function 185

B Potential Counter-examples 188

i Preventing Circumvention of Fiduciary Protection 188

ii Solicitors Cases 190

iii Negotiations towards Joint Ventures 195

iv Bare Trusts 197

III Proscriptive Duties 201

IV Authorisation 204

V Critiques of Fiduciary Doctrine 208

8 Conceptual Affinities 214

I Contract and Fiduciary Doctrine 214

II Torts and Fiduciary Doctrine 221

A Fiduciary Doctrine and Negligence 222

B Surrogacy for Tort Law Generally 228

i Cause of Action Surrogacy 228

ii Civil Wrongs 229

III Undue Influence and Confidence 236

A Undue Influence 236

B Confidence 241

9 The Incidence of Fiduciary Duties 245

I Academic Commentators 246

A Acting on Behalf of Another 246

B Discretion and Power 247

C Reasonable Expectations 249

D Limited Access 251

II Turning Theory into Practice 254

A Judicial Applications 254

B Relevant Considerations 260

10 Epilogue 269

Index 277

Editorial Reviews

This carefully argued monograph takes a novel and conceptually subtle approach to explaining the significance of fiduciary loyalty. It represents a sophisticated attempt to explain how more detailed rules can be synthesized in an approach that focuses on fiduciary law's underlying normative imperative of loyalty, both in terms of its content and its systemic significance.

This monograph is a superb example of doctrinal private law writing, a fact recognized by the award of the SLS Peter Birks Second Prize for Outstanding Legal Scholarship 2010. IT will be of interest to academics and some practitioners seeking a deeper understanding of the formative forces of fiduciary law, and it would be a strong addition to a reading list for advanced students. For academics with an interest in fiduciary law, whether we agree with Dr Conaglen's thesis or not … it is a sine qua non to which we must all respond.” —The Edinburgh Law Review Volume 15

“...the apparent product of mature reflection and is a clearly and cogently expressed refutation of the writings of Langbein and other such theorists...This is the first work in many years which covers this important and difficult field. It is bound to be established as a first port of call for all branches of the legal profession when grappling with fiduciary law.” —84 Australian Law Journal 27

“This in an outstanding book that represents the culmination of ten years of research and reflection. It is a work of exceptional scholarship that provides much insight and clarity into the theoretical and practical operation of fiduciary doctrine and, in particular, the fiduciary obligation of loyalty.

Dr Conaglen provides a comprehensive and coherent analysis of the nature and function of the fiduciary duties... [a] most interesting and illuminating book.” —Trusts and Estates Law and Tax Journal Issue 117

“[A] finely balanced examination of the fiduciary doctrine from both a conceptual and a practical perspective.” —Australian Banking and Finance Law Bulletin

From the Publisher