A – Agent as fiduciary
16/7/14
FHR EUROPEAN VENTURES LLP v CEDAR CAPITAL PARTNERS LLC [2014] UKSC 45, [2015] AC 250
The Court of Appeal had been right to hold that where an agent receives a secret commission in breach of the fiduciary duty owed to his principal, the agent held the money on trust for his principal, so the principal had a proprietary claim to it. Cases suggesting that there is no trust are wrong.
3/2/14
BOVINGDON v BELCHER [2014] EWHC (Ch)
Monies paid to an agent as a result of the agent’s undue influence or breach of duty as agent, were ordered to be repaid.
25/4/13
WALSH v SHANAHAN [2013] EWCA Civ 411
When an agency terminated the former agent ceased to owe fiduciary duties so the principal ceased to be entitled as of right to an account of profits made thereafter by the agent by misuse of the principal’s confidential information. That was a tort and the judge had been right to hold that he had a discretion whether to order an account of profits as the remedy rather than damages. On the facts the judge’s decision to award damages and to refuse an account of profits as disproportionate, was unimpeachable.
29/1/13
FHR EUROPEAN VENTURES LLP v MANKARIOUS [2013] EWCA Civ 17
A secret commission paid by the seller of an hotel to the buyer’s agent was held on constructive trust for the buyer. It could not be traced into the agent’s hands, because when the seller paid the purchase price it had intended the buyer to obtain legal and beneficial title to the money. But the agent had been a fiduciary and had taken advantage of an opportunity belonging to the buyer, because the buyer might have delayed contracting if it had known that the commission was to be paid to the agent from the purchase money, or the buyer might have negotiated down the fee it paid to the agent thereby reducing the overall cost of the transaction to the buyer.
30/10/12
CROCS EUROPE BV v ANDERSON [2012] EWCA Civ 1400
The duties of agents in the Commercial Agents (Council Directive) Regs 1993 do not create contractual conditions breach of which automatically justify termination. Although a commercial agency is a fiduciary relationship, not all breaches necessarily amount to a repudiation. The question is how serious in all the circumstances was the conduct. Applying general contractual principles, and as in the employment context, there will be a repudiation if a party conducts himself in a way which, viewed objectively, is likely to destroy or seriously damage the relationship. On the facts the judge had been entitled to find that the posting of derogatory comments on the internet had not been sufficiently serious to be a repudiatory breach justifying termination.
GRIMALDI v CHAMELEON MINING NL (NO. 2) [2012] FCAFC 6 (Fed Ct (Aus)
Considered claims against de facto director for breach of fiduciary duty and accepting secret commissions, and against third parties dealing with the company for knowing receipt and assistance.
25/1/12
ROSS RIVER LTD v WAVELEY COMMERICAL LTD [2012] EWHC 81 (Ch)
Contains a useful summary at [235] – [256] of the principles to be applied in determining whether one party owes a fiduciary duty to another. On the facts a party to a joint venture agreement owed a fiduciary duty to act in good faith in the operation of the joint venture and in accounting to the other party for its share of profits, as well as a fiduciary duty not to do anything which favoured itself to the disadvantage of the other party when handling joint venture revenues.