The Cambridge Law Journal

Articles

THE EXTENT OF FIDUCIARY ACCOUNTING AND THE IMPORTANCE OF AUTHORISATION MECHANISMS

Matthew Conaglena1

a1 Reader in Equity and Trusts, Faculty of Law, University of Cambridge; Fellow of Trinity Hall, Cambridge; Door Tenant, XXIV Old Buildings, Lincoln's Inn.

This article is concerned with the extent of a fiduciary's obligation to account for profits that have been made in breach of fiduciary duty. In particular, it responds to suggestions made recently by some senior judges that the courts ought to have a wide-ranging discretion to alter the degree to which a fiduciary must account for profits. It is well-settled that a fiduciary must account for profits that have been generated from his fiduciary position or in circumstances involving a conflict between the fiduciary's duty and his interest. The fiduciary need not account if the profit or conflict was properly authorised, in which case there was no breach of fiduciary duty. But in the absence of such authorisation, the fiduciary must account for all of the profit that has been made in breach of fiduciary duty, other than insofar as the court grants an equitable allowance to the fiduciary for work done in generating that profit. The question addressed here is whether the court ought to have a wider discretion to award an account of only part of the profits that a fiduciary has made in breach of fiduciary duty, leaving the remainder of the profits in the fiduciary's hands?

Footnotes

Core elements of this article were presented at a Chancery Bar Association seminar in Lincoln's Inn on 24 May 2010. I am grateful, with the normal disclaimers, to participants at that seminar who made useful observations, and to Brian Cheffins and Richard Nolan for helpful comments on a draft of the article.