1. Preliminary
   1. Duties
      1. Loyalty
      2. Good faith
      3. Must avoid any potential conflict of interest
      4. Depend on relationship
   2. Relationships
      1. Fiduciary per se
         1. Arises when
            1. X has a duty to act in Y's interest
            2. X has duties and powers which could be used in his own interest
      2. Arises on the facts
         1. Y is relying on X's loyalty
         2. and is especially vulnerable
   3. Makes equitable remedies available
      1. Fills gaps in common law
   4. Approach of courts
      1. Very strict
         1. Particularly in case of a trust
      2. Prophylactic approach
      3. Evidential problems
   5. Remedies
      1. Personal remedy
         1. Compensation for loss
         2. Account for unauthorised profit
      2. Proprietary remedy
         1. Claim property representing profit
2. Remuneration
   1. General rule
      1. Trustees cannot charge for services
   2. Exceptions
      1. Authorised by trust instrument
         1. 'Charging clause'
      2. Beneficiaries' consent
         1. All must be sui juris
         2. Fair
         3. Full disclosure
      3. Court order
         1. Inherent jurisdiction to authorise remuneration
         2. If in interest of beneficiaries
            1. Re Duke of Norfolk's ST [1981]
      4. Trustee Act 2000
         1. s28
            1. professional capacity
            2. in course of business
            3. which includes administration of trusts
         2. s29
            1. if not a trust corporation
            2. other trustees must agree in writing
            3. so cannot apply to sole trustee
            4. does not apply if charging covered by trust instrument
            5. 'reasonable' remuneration
            6. Public Trustee publishes rates
3. Basis of fiduciary duties
   1. Conaglen
      1. Fiduciary duty is an obligation not to allow personal interest to conflict with non-fiduciary duties to the trust
         1. Consistent with strict application
            1. Keech v Sandford
         2. Consistent with prophylactic approach
4. Companies Act 2006
   1. Codifies fiduciary duties of directors
   2. s175
      1. Must avoid any situation with potential for conflict of interest
      2. Particularly applies to
         1. property
         2. information
         3. opportunity
      3. Except with consent of other directors
         1. (only applies to companies formed after 1 Oct 2008)
      4. Or if cannot reasonable be regarded as giving rise to conflict
      5. Does not apply if conflict arises in relation to transaction with the company itself
         1. must just declare interest
   3. s176
      1. Must not accept benefits from third parties conferred by reason of directorship
         1. unless could not reasonably be regarded as conflict
5. Remedies
   1. Personal
      1. Must account for unauthorised profit
   2. Proprietary
      1. Hold actual property on constructive trust
      2. Lister v Stubbs (1890)
         1. Stubbs purchased land with secret commission
         2. Court did not accept was held on constructive trust
         3. Had not taken trust property
         4. Only personal claim permitted
      3. A-G for Hong Kong v Reid [1994]
         1. Government official accepted bribes
         2. Used bribes to buy property
         3. Held that property held on constructive trust
         4. Has been criticised
            1. Should not impose constructive trust lightly
            2. Gives priority over creditors if bankrupt
            3. Law can strip fiduciary of profit even in personal claim
6. Incidental profits
   1. Must account for any personal profit gained
      1. From use of trust property
      2. Or opportunity gained through position
      3. Or information gained through position
   2. Indirect remuneration from third party
      1. Director's fees
         1. Was appointment dependent on trust shares?
            1. If so, must account
            2. Re Macadam[1946]
            3. If not, may keep fees
            4. Re Gee [1948]
            5. Unless authorised by trust instrument
            6. Or court order
            7. Will use sparingly
            8. Re Keeler's ST [1981]
            9. only if special care and skill required
         2. If Director before became trustee
            1. May keep fees
            2. Re Dover Coalfield Extension [1908]
      2. Commission
         1. Has to account
            1. Williams v Barton [1927]
         2. Unless authorised by trust instrument
   3. Renewal of trust leases and purchase of freehold conversion
      1. Renewal
         1. If obtain renewal for own benefit
         2. Must surrender to trust
            1. Held on constructive trust for beneficiary
         3. Even if landlord refused to renew for benefit of trust
            1. Keech v Sandford (1726)
      2. Purchase of freehold
         1. same applies
            1. Protheroe v Protheroe [1968]
         2. will be reimbursed
   4. Use of trust opportunities and information
      1. Boardman v Phipps [1967]
         1. Trust owned shares in private company
         2. Son and solicitor bought further shares
            1. Trust could not have bought
            2. Beneficiaries gave permission but did not have full information
            3. Needed permission of trustees too
            4. Said they represented trust in negotiations
            5. Acted as proxies of trustees
            6. This gave rise to fiduciary rel
         3. Gained control of company
            1. Company became profitable
         4. Held liable
            1. Majority upheld strict rule in
            2. Keech v Sandford (1726)
            3. Had to account for shares and profit
            4. Reimbursed with costs
            5. Awarded generous remuneration under court's inherent jurisdiction
7. Purchase of trust property
   1. Purchase of trust property
      1. Sale is voidable by beneficiaries
      2. Can demand property back
      3. Trustee reimbursed for purchase price
      4. If sold to bona fide purchaser, can demand profit on sale
      5. Applies
         1. to personal representatives as well as trustees
         2. regardless of whether advantage gained
            1. Ex parte Lacey (1802)
         3. even where independently valued
            1. Wright v Morgan [1926]
         4. or at auction
      6. Exceptions
         1. All beneficiaries sui juris and consent
         2. Authorised by trust instrument
         3. Obtains court's consent
         4. Holder v Holder
            1. thought had renounced role as executor
            2. had not acted as both vendor and purchaser
            3. made intention to purchase clear throughout
   2. Purchase of beneficiary's equitable interest
      1. Beneficiaries can avoid
      2. Unless trustee shows is fair and no undue influence
         1. Must disclose all material facts before purchase
         2. Transaction is fair and honest
         3. Must show took no advantage
8. Competition with the trust
   1. Trustee is accountable for profits of any competing business
   2. Injunction to prevent trustee carrying on competing business
      1. Re Thompson [1930]
      2. Restrained from setting up yacht broking business in same town