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THE REMEDIAL PRINCIPLE OF KEECH v. SANDFORD RECONSIDERED

Published online by Cambridge University Press:  11 June 2010

Andrew D. Hicks
Andrew D. Hicks
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Lecturer in Law, University of Hull.
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The Cambridge Law Journal , Volume 69 , Issue 2 , July 2010 , pp. 287 - 320
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Copyright © Cambridge Law Journal and Contributors 2010

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References

1 Attorney-General for Hong Kong v. Reid [1994] 1 A.C. 324.

2 Cook v. Deeks [1916] 1 A.C. 554; Crown Dilmun v. Sutton [2004] EWHC 52 (Ch), [2004] 1 B.C.L.C. 468.

3 The consequences that flow from the recognition of proprietary claims are considered further in G. Jones, Goff & Jones: The Law of Restitution, 7th ed., (London 2007), pp. 85–86; L. Smith, The Law of Tracing (Oxford 1997), pp. 24–29.

4 [1994] 1 A.C. 324, 331–332.

5 OJSC Oil Company Yugraneft (in liquidation) v. Abramovich & Ors [2008] EWHC 2613 (Comm), at [373], [376]; Sinclair Investment Holdings SA v. Versailles Trade Finance Ltd. (in administration) [2007] EWHC 915 (Ch), at [105]; Ultraframe (UK) Ltd. v. Fielding & Ors [2005] EWHC 1638 (Ch), at [1489]; Papamichael v. National Westminster Bank plc [2003] EWHC 164 (Comm), [2003] 1 Lloyd's Rep. 341, at [217]. See also Swain v. Law Society [1982] 1 W.L.R. 17, 36; Re Edwards' Will Trusts [1982] 1 Ch. 30, 40. The comments in each of these cases were, however, strictly obiter.

6 [1967] 2 A.C. 46.

7 Of the majority in the House of Lords, Lord Cohen seems to have had an account of profits in mind, stating each defendant is “accountable to the respondent for his share of the net profits they derived from the transaction”. Lord Hodson described the defendants as “constructive trustees” but used this term to denote no more than the defendants were in positions of trust and thus owed fiduciary obligations. Lord Guest concluded “the appellants hold the shares as constructive trustees”: see [1967] 2 A.C. 46, 104, 105, 117. In the Court of Appeal Pearson L.J. was of the opinion that the “plaintiff's claim is based solely on property rights”: [1965] 1 Ch. 992, 1031. However, the Court made much of the controversial claim that the information used by the defendants was trust property: see [1965] 1 Ch. 992, 1018–1019 per Lord Denning M.R., 1031 per Russell L.J. This may have provided an alternative, though highly questionable, foundation for a proprietary claim. The order of Wilberforce J. at first instance, affirmed ultimately by the House of Lords, is reported differently in [1964] 1 W.L.R. 993, 1018 (account of profits ordered with further consideration of the transfer of the shares held by the defendants being adjourned) and [1964] 2 All E.R. 187 in the head note and at p. 208 (shares held on constructive trust). The ambiguity is unlikely to be resolved since no copy of the order of Wilberforce J. remains in either the archives of the Royal Courts of Justice or those of the House of Lords: see M. Conaglen, “Thinking About Proprietary Remedies for Breach of Confidence” [2008] I.P.Q. 82, 86.

8 See P.B.H. Birks, An Introduction to the Law of Restitution, revised ed., (Oxford 1989), p. 388 and Ultraframe (UK) Ltd. v. Fielding & Ors [2005] EWHC 1638 (Ch), at [1489] (Lewison J.), both asserting Boardman involved a personal claim for the defendants' net profits. Compare A. Burrows, The Law of Restitution, 2nd ed., (London 2002), p. 500 and Carlton v. Halestrap (1988) 4 B.C.C. 538, 540 (Morritt J.), both asserting Boardman involved the imposition of a constructive trust.

9 See e.g. Cook v. Deeks [1916] 1 A.C. 554, as discussed in Birks, op. cit., at pp. 137–138, 144–145 (providing an interceptive subtraction analysis). A similar case is Tarkwa Main Reef Ltd. v. Merton (1903) 19 T.L.R. 367.

10 [1994] 1 A.C. 324, 332, 335.

11 (1726) Sel. Cas. t. King 61, 2 Eq. Cas. Abr. 741.

12 A useful overview of treatise-inspired doctrinal developments in contract, tort and public law can be found in P.S. Atiyah, Pragmatism and Theory in English Law (London 1987), pp. 148–152, 168–180. On the influence of jurists more generally, see N. Duxbury, Jurists and Judges: An Essay on Influence (Oxford 2002); B.M. Komar, “Textbooks as Authority in Anglo-American Law” (1922–1923) 11 Cal. L. Rev. 397.

13 Holt v. Holt (1670) 1 Ch. Cas. 190; Rushworth's Case (1676) 2 Freem. 13; Walley v. Walley (1687) 1 Vern. 484.

14 D.E.C. Yale (ed.), Lord Nottingham's Chancery Cases, Volume II (79 Selden Society, 1961), p. 126.

15 For more detailed discussion of the case and its ramifications, see J. Getzler, “Rumford Market and the Genesis of Fiduciary Obligation” in A. Burrows & A. Rodger (eds.), Mapping the Law: Essays in Memory of Peter Birks (Oxford 2006), 577, at pp. 581–589; J. Mowbray, Lewin on Trusts, 18th ed., (London 2008), pp. 576–586; A.J. Oakley, Constructive Trusts, 3rd ed., (London 1997), pp. 156–160; J.G. Stark, “The Durability of the Rule in Keech v Sandford” (1984) 58 Aus. L.J. 660; S. Cretney, “The Rationale of Keech v. Sandford” (1969) 33 Conv. 161; W.G. Hart, “The Development of the Rule in Keech v. Sandford” (1905) 21 L.Q.R. 258.

16 (1726) Sel. Cas. t. King 61, 62.

17 See e.g. CMS Dolphin Ltd. v. Simonet [2002] B.C.C. 600, at [84]; Hodgkinson v. Simms [1994] 3 S.C.R. 377, at [31], [49]. The loyalty obligation is given content by the no-profit and no-conflict rules. For cases emphasising the no-profit aspect of Keech, see O'Donnell v Shanahan [2009] EWCA Civ 751, [2009] B.C.C. 822, at [55]; Thompson's Trustee in Bankruptcy v. Heaton [1974] 1 W.L.R. 605, 612; In re Pelly's Will Trust [1957] Ch. 1, 11; Nordisk Insulinlaboratorium v. Gorgate Products LD [1953] Ch. 430, 445–446. For cases emphasising the no-conflict aspect of Keech, see Foreman v. King [2008] EWHC 592 (Ch); Blythe v. Northwood [2005] NSWCA 221, at [191]–[192]; Re Mountforest [1993] B.C.C. 565, 567–568; Swain v. The Law Society [1982] 1 W.L.R. 17, 29; Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 Q.B. 606, 635.

18 Re Edwards' Will Trusts [1982] 1 Ch. 30, 40 per Buckley L.J.

19 [1994] 1 A.C. 324, 332, 335. See also Ultraframe (UK) Ltd. v. Fielding & Ors [2005] EWHC 1638 (Ch), at [1489]; Newby v. Enron Corp. 188 F. Supp. 2d. 684, 703-704 (SD. Tex. 2002).

20 Chan v. Zachariah (1984) 154 C.L.R. 178, 199 per Deane J. The passage of which this statement is part was quoted with approval in Gencor ACP Ltd. v. Dalby [2000] 2 B.C.L.C. 734, at [16] and Don King Productions Inc v. Warren [2000] Ch. 291, 341. However, in both cases the focus was on the fiduciary's liability rather than the nature of the remedy.

21 Keith Henry & Co. Pty. Ltd. v. Stuart Walker & Co. Pty. Ltd. (1958) 100 C.L.R. 342, 350. See also Blythe v. Northwood [2005] NSWCA 221, at [196]–[197]; Gibb Australia Pty. Ltd. v. Cremor Pty. Ltd. (1992) 108 F.L.R. 129, 133; Stoehr v. Miller 296 F. 414, 426 (2nd Cir. 1923).

22 [1983] F.S.R. 318.

23 [1983] F.S.R. 318, 322–323. Since the claimant did not wish to take over the business the constructive trust was not enforced but an injunction granted to restrain the competition. Compare Warman International Ltd. v. Dwyer (1995) 69 A.L.J.R. 362, where a distinction was drawn for remedial purposes between cases involving the acquisition of a specific asset and cases involving the acquisition and operation of a business.

24 For more detailed biographical information on Lord Chancellor King, upon which the present discussion draws heavily, see D. Lemmings, “King, Peter” in Oxford Dictionary of National Biography, online ed., (2008); J. Getzler, “Rumford Market and the Genesis of Fiduciary Obligation” in A. Burrows & A. Rodger (eds.), Mapping the Law: Essays in Memory of Peter Birks (Oxford 2006), 577, at pp. 583–585; W. Holdsworth, A History of English Law (London 1922–1966), vol. 12, pp. 206–214; J.L. Campbell, Lives of the Lord Chancellors and Keepers of the Great Seal of England (London 1846), vol. 4, pp. 567–647; W.N. Welsby (ed.), Lives of Eminent English Judges of the Seventeenth and Eighteenth Centuries (London 1846), pp. 240–262.

25 Campbell, op. cit., at pp. 609–610. Lord Macclesfield suffered a dramatic and very public fall from grace following the bursting of the South Sea Bubble and the loss of suitors' money by bankrupt Chancery Masters, who had speculated in South Sea stock: ibid., at pp. 522–524, 534–559.

26 Welsby, op. cit., at pp. 258–259.

27 Campbell, op. cit., at p. 612.

28 Most assessments are less flattering: see Holdsworth, op. cit., vol. 12, pp. 210–211 (“not learned in equity” and “never…. quite at home with either the practice or the doctrines of his court”); H. Potter, An Introduction to the History of Equity and its Courts (London 1931), p. 84 (a pure common lawyer “who understood little or nothing of Equity”); D.M. Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (Cambridge 1890), p. 175 (“a common law lawyer, who knew no equity and before whom, it is said, causes were equitably arranged by the candour of the leaders of the Chancery Bar”).

29 The two works are known generally by their shorter titles or abbreviations: Select Cases in Chancery (Sel. Cas. Ch. or Sel. Cas. t. King) and Equity Cases Abridged (Eq. Cas. Abr.).

30 J.W. Wallace, The Reporters: Arranged and Characterised with Incidental Remarks, 4th ed., (Boston 1882), p. 504. The second volume of Equity Cases Abridged was similarly condemned: ibid., at p. 491.

31 See J.H. Baker, An Introduction to English Legal History, 4th ed., (London 2002), pp. 183–184; Kerly, op. cit., at p. 187. The only notable exception is the celebrated series by Peere Williams.

32 D.R. Paling, “The Pleadings in Keech v Sandford” (1972) 36 Conv. 159. Smaller parts of the pleadings are also transcribed in A.K.R. Kiralfy, A Source Book of English Law (London 1957), pp. 278–280.

33 Ibid., at p. 173 (the landlord “hath often declared he would not have granted any lease to the [beneficiary] had she applied for the same which she never did to the knowledge or belief of this Defendant”).

34 Ibid., at p. 172. The matter is uncertain since there may have been an innocent explanation for the payment. Lord King said he did “not say there is a fraud in this case”. However, he is unlikely to have investigated the point since it was, in his view, irrelevant to the outcome. The practice of Chancery was also to dispose of cases where possible without prejudice to the defendant's moral character.

35 See S. Cretney, “The Rationale of Keech v. Sandford” (1969) 33 Conv. 161.

36 O.W. Holmes, “Codes, and the Arrangement of the Law” (1870) 5 Am. L. Rev. 1.

37 Flannigan suggests that the strict principle of fiduciary accountability “had formally crystallised in the English jurisprudence by the end of the eighteenth century”: R. Flannigan, “The Adulteration of Fiduciary Doctrine in Corporate Law” (2006) 122 L.Q.R. 449, 449. However, this significantly underplays later developments, not least those during Lord Eldon's period as Lord Chancellor: see M. Conaglen, Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties (Oxford 2010), pp. 18–20. See also below, notes 40–42 and accompanying text.

38 e.g. Owen v. Williams (1773) Amb. 734, 737; Stone v. Theed (1787) 2 Bro. C.C. 243, 248; Taster v. Marriot (1768) Amb. 668.

39 For example, the rule allowing solvent executors to retain profits from the investment of the assets of their office, recognised in Bromfield v. Wytherley (1718) Prec. Ch. 505, Adams v. Gale (1740) 2 Atk. 106 and Child v. Gibson (1743) 2 Atk. 603. The rule was eventually condemned by Lords Loughborough and Thurlow: see Adye v. Feuilleteau (1783) 1 Cox 24, 25; Newton v. Bennett (1784) 1 Bro. C.C. 359; Piety v. Stace (1799) 4 Ves. 620, 622.

40 Ex parte Lacey (1802) 6 Ves. Jun. 625, 627; ex parte Bennett (1805) 10 Ves. 381, 395; ex parte James (1803) 8 Ves. Jun. 337, 345–346, 348. The first attempt to derive a general fiduciary principle from Keech appears in York Buildings Co. v. Mackenzie (1795) 8 Bro. 42, 63–66. See also the annotation in H. Ballow, A Treatise of Equity with the Addition of Marginal References and Notes, 2nd ed., by J. Fonblanque (London 1799), vol. 2, p. 187 (identifying the general principle of Holt v. Holt (1670) 1 Ch. Cas. 190 and Keech v Sandford as being “that a trustee shall not be allowed to raise in himself an interest opposite to that of his cestui que trust”).

41 Ex parte Bennett (1805) 10 Ves. 381, 400. Lord Eldon estimated the Court was unable to detect actual wrongdoing in “ninety-nine cases out of a hundred”: ex parte Lacey (1802) 6 Ves. Jun. 625, 627.

42 H.H. Kames, Principles of Equity, 4th ed., (Edinburgh 1800), p. 375. See also Bulkley v Wilford (1834) 8 Bligh N.S. 111, 143, 147 per Lord Eldon, 156 per Lord Wynford.

43 The restrictions are considered at length in T. Platt, A Treatise on the Law of Leases with Forms and Precedents (London 1847), vol. 1, pp. 238–320; C.H. Chambers, A Treatise on Leases and Terms for Years (London 1819), pp. 250–283. The object of the restrictions was to prevent ecclesiastical and eleemosynary bodies taking unfair advantage of their powers “to the impoverishment and injury of their successors”: Preamble, 1 Eliz. c.19.

44 Longer terms were permitted for leases of houses in cities and towns: 14 Eliz c.11.

45 The restrictions were motivated by the desire to avoid further diminutions of the Crown's land revenues that had been caused by improvident grants of gifts and long leases by preceding monarchs: W. Blackstone, Commentaries on the Laws of England, 4th ed., (Oxford 1770), vol.1, pp. 286–287.

46 Platt, op. cit., at pp. 703–705; Cretney, op. cit., at pp. 163–168.

47 The tenant right was not a feature of private leases, which were not restricted as to duration of term. Requests for renewals were nevertheless rarely disappointed and this generated strong expectations. A common practice also existed in Ireland, the West Country and some areas of the North to insert covenants for perpetual renewal into lease agreements, these being specifically enforceable in equity: Pickering v. Vowles (1783) 1 Bro. C.C. 197, 198; Iggulden v. May (1804) 9 Ves. 325, 331.

48 Under French law, by contrast, an ecclesiastic was required to give the sitting tenant first refusal of a renewal: Anon. (1675) 2 Ch. Cas. 207, 208. Similarly the lessee of a college had a legal right to renew “in France and all other places almost but here”: Mr Rushworth's Case (1676) 2 Freem. 13.

49 Lee v. Vernon (1776) 5 Bro. P.C. 10, 18. See also White v. White (1804) 9 Ves. Jun. 554, 557.

50 Attorney-General v. Bishop of Ely (1827) 4 Russ. 102, 109.

51 Lee v. Vernon (1776) 5 Bro. P.C. 10, 14. See also Norris v. Le Neve (1745) Ridg. t. Hardwicke 322, 330, where Lord Hardwicke observed of the practice of renewal that “though the tenants have properly no right, yet he is always preferred”.

52 McCourt v. Singers-Bigger 145 Fed. 103, 108 (8th Cir. 1906).

53 M. Bacon, A Treatise on Leases and Terms for Years (London 1798), p. 222. See also J. Hill, A Practical Treatise on the Law Relating to Trustees (London 1845), pp. 440–441 (“the tenant's right of renewal is so generally acted upon by ecclesiastical and other corporations, that it has become an interest recognized by the Court”).

54 (1728) 2 P. Wms. 456.

55 Ibid., at p. 459.

56 (1773) Amb. 734. See also Jones v. Powell (1841) 4 Beav. 96.

57 This is spelt out clearly in the older books: e.g. Bacon, op. cit., at pp. 222–223.

58 G. Virgo, Principles of the Law of Restitution, 2nd ed. (Oxford 2006), p. 520.

59 “[G]overnment has no other end but the preservation of Property”: J. Locke, Two Treatises of Government (1690), Book II, §94. For similar judicial sentiments, see Entick v Carrington (1765) 2 Wills K.B. 275, 291 per Lord Camden.

60 W. Blackstone, Commentaries on the Laws of England, 4th ed. (Oxford 1770), vol.1, p. 139 (identifying expropriation of property as a power which “the legislature indulges with caution, and which nothing but the legislature can perform”).

61 This “fruits doctrine” was particularly influential following the natural law writings of John Locke and Samuel Pufendorf: S. Pufendorf, De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo (1673), translated into English as The Whole Duty of Man According to the Law of Nature, by C. Harper (London 1691), pp. 151–152; Locke, op. cit., ch. 5. See further, J.P. Thomas, A Treatise of Universal Jurisprudence, 2nd ed., (London 1829), p. 27. Locke's thinking in particular may have influenced Lord Chancellor King. Locke was his uncle and, until Locke's death in 1704, his mentor. “[Locke] became a second father to King, sending a constant stream of advice and providing him with an entrée into his London circle of acquaintances”: D. Lemmings, “King, Peter” in Oxford Dictionary of National Biography, online ed., (2008). Upon his death Locke left King many of his books.

62 Rawe v. Chichester (1773) Amb. 715, 719. See also Randall v. Russell (1817) 3 Mer. 190, 197; Re Biss [1903] 2 Ch. 40, 56 per Collins M.R.

63 Rakestraw v. Brewer (1728) 2 P. Wms. 511, 513. See also Taster v. Marriot (1768) Amb. 668, 669; Clegg v. Fishwick (1849) 1 Mac. & G. 294, 298–299; Fine v Lawless 201 S.W. 160, 163 (SC, Tenn. 1918) (noting the English renewal cases decide that the old lease “in a sense gives birth to the new lease”).

64 (1890) 45 Ch. D. 1.

65 But note CMS Dolphin v. Simonet [2002] B.C.C. 600, at [96]. Lawrence Collins J. classified a maturing business opportunity as trust property and the profits of the exploitation of such opportunity as the fruits of trust property to be held on constructive trust. This incorrectly assumes (1) the appropriateness of extending the property concept to opportunity; and (2) that the same level of protection is necessarily afforded to opportunity as is afforded to other objects of property.

66 See Lees v. Nuttall (1829) 1 Russ. & M. 53, affirmed (1834) 2 My. & K. 819; Taylor v. Salmon (1838) 4 My. & Cr. 134, 139; Gardner v. M'Cutcheon (1842) 4 Beav. 534; Carter v. Palmer (1842) 8 Cl. & F. 657. See also Tarkwa Main Reef Ltd. v. Merton (1903) 19 T.L.R. 367.

67 Massey v. Davies (1794) 2 Ves. Jun. 318; Bentley v. Craven (1853) 18 Beav. 75; Benson v. Heathorn (1842) 1 Y. & C.C.C. 326; Kimber v. Barber (1872–73) 8 Ch. App. 56.

68 In re Cape Breton Company (1885) 29 Ch. D. 795, 803–806 per Cotton L.J., 811 per Fry L.J.; Tyrrell v. Bank of London (1862) 10 H.L.C. 26; Benson v. Heathorn (1842) 1 Y. & C.C.C. 326; East India Company v. Henchman (1791) 1 Ves. Jun. 287.

69 In re Cape Breton Company (1885) 29 Ch. D. 795, 804 per Cotton L.J.; In re Ambrose Lake Tin and Copper Mining Company (1880) 14 Ch. D. 390, 398 per Cotton L.J.

70 Where the fiduciary's wrongful acquisition does not interfere with the objectives of the relationship – for instance, because the opportunity was not one that the principal would have pursued – proprietary reasoning is absent: see e.g. Russell v. Austwick (1826) 1 Sim. 52.

71 The obligations of the fiduciary are essentially specifically enforced – “equity treats as done that which ought to be done”: see Sir Peter Millett, “Bribes and Secret Commissions” [1993] R.L.R. 7, also published as “Remedies: The Error in Lister v. Stubbs” in P.B.H. Birks (ed.), Frontiers of Liability (Oxford 1994), vol. 1, p. 51, 57–58. As is well known Sir Peter extends this reasoning to the taking of bribes with the aid of an irrebuttable evidential presumption: the fiduciary is presumed to have received the bribe legitimately on behalf of his principal. The wrong therefore lies in the fiduciary's failure to account for the benefit, not in his initial acquisition of it. This, however, is a non sequitur. The fiduciary is treated as having received legitimately for his principal that which he was duty-bound not to receive at all.

72 Bagnall v. Carlton (1877) 6 Ch. D. 371; Lydney and Wigpool Iron Ore Company v. Bird (1886) 33 Ch. D. 85; Emma Silver Mining Company v. Grant (1879) 11 Ch. D. 918; Emma Silver Mining Company v. Lewis & Son (1878–79) 4 C.P.D. 396.

73 Section 165 provided a summary procedure by which a liquidator could recover benefits recoverable by the company at law or in equity. Hence, recovery was dependent on the application of existing common law and equitable principles: Nant-y-Glo and Blaina Ironworks Company v. Grave (1878) 12 Ch. D. 738, 746–747; In re North Australian Territory Company (Archer's Case) [1892] 1 Ch. 322, 334.

74 In re Morvah Consols Tin Mining Company (McKay's Case) (1875–76) 2 Ch. D. 1, 6 per Mellish L.J.; In re Caerphilly Colliery Company (Pearson's Case) (1877) 5 Ch. D. 336, 342 per James L.J., 341 per Jessel M.R.

75 This is clearly recognized in the cases: see McKay's Case (1875–76) 2 Ch. D. 1, 7 per Brett L.J.; In re Canadian Oil Works Corporation v Hay (Hay's Case) (1874–75) 10 Ch. App. 593, 600 per James L.J., 605 per Mellish L.J.; Madrid Bank v. Pelly (1868–69) 7 Eq. 442, 447–448 per Romilly M.R.; In re Brighton Brewery Company (1868) 37 L.J. (Ch) 278, 280–281 per Cotton L.J.

76 Indeed, in some instances property passed directly into the director's hands, the inflated price in the purchase agreement simply concealing a direct misappropriation of the company's money: see Hichens v. Congreve (1828) 1 Russ. 562.

77 Williams v. Barton [1927] 2 Ch. 9 is best understood in these terms. The case is unusual since it seems the trust received fair value for the fee paid to the stockbrokers. Nevertheless, the important point remains the fee element representing the defendant trustee's commission passed from the trust to the stockbrokers and “through them to the defendant” (ibid., at p. 12).

78 (1829) 1 Russ. & M. 132.

79 Ibid., at p. 148.

80 This is supported by the reasoning of Sir John Leach V.C., whose decision Lyndhurst L.C. affirmed. The Vice-Chancellor reasoned Whitehouse was to be treated “as if he had done his duty and had actually received the £12,000 for the new partnership”: ibid., at p. 149.

81 (1856) 3 Sm. & Giff. 192.

82 Ibid., at p. 193.

83 Ibid., at p. 194.

84 W. Holdsworth, A History of English Law (London 1922–1966), vol. 13, p. 439.

85 (1862) 10 H.L.C. 26.

86 Ibid., at p. 59. The liability of the solicitor was merely to “account for the value of that property”: ibid., at p. 46 per Lord Westbury L.C. See also ibid., at p. 50 per Lord Cranworth.

87 Metropolitan Bank v. Heiron (1880) 5 Ex. D. 319; Lister & Co. v. Stubbs (1890) 45 Ch. D. 1; In re North Australian Territory Co. (Archer's Case) [1892] 1 Ch. 322, 338.

88 Boston Deep Sea Fishing and Ice Company v. Ansell (1888) 39 Ch. D. 339, 348 per Kekewich J., 364 per Bowen L.J.; Morison v. Thompson (1873–74) 9 Q.B. 480, 484 per Cockburn C.J.

89 Archer's Case [1892] 1 Ch. 322, 338.

90 Ibid.

91 Lister & Co. v. Stubbs (1890) 45 Ch. D. 1.

92 Ibid., at p. 15.

93 Ibid., at pp. 4–5, 9–10 per Sterling J., 12 per Cotton L.J. The proposition appears to contradict the cases in which opportunities appropriated from third parties were held on trust for the principal. However, in these cases, of which the Court of Appeal must have been aware, agency ideas could be invoked and the agent's obligations effectively specifically enforced by presuming he had indeed acted consistently with the terms of his engagement.

94 Earl of Shrewsbury v. North Staffordshire Railway (1865) 1 Eq. 593, 608. See also Pole v. Pole (1865) 2 Dr. & Sm. 420, 423.

95 e.g. J. Mowbray, Lewin on Trusts, 16th ed., (London 1964), pp. 148–149.

96 (1876–77) 2 App. Cas. 544.

97 Ibid., at p. 555.

98 Ibid., at p. 549. Indeed, Lord O'Hagan seems to have disposed of the case ultimately on this ground (ibid., at p. 556), as did Lord Hatherley (ibid., at pp. 552–553). Another case containing similar broad statements of remedial principle, but which equally turned on the application of the fruits doctrine, is Docker v. Somes (1834) 2 My. & K. 655. See also Rowley v. Ginnever [1897] 2 Ch. 503.

99 (1829) 1 Russ. & M. 132.

100 J. Story, Equity Jurisprudence as Administered in England and America (Boston 1836), vol. 2, §1261.

101 J. Story, Commentaries on the Law of Bailments (Cambridge, Mass.1832). A specially produced English edition was published in London in 1839. The only indigenous work on the area was the dated and incomplete treatise by Sir William Jones, An Essay on the Law of Bailments (London 1781). Although Jones' work had been cited frequently by judges since its publication it was often ignored in the mid-nineteenth century in favour of Story's more sophisticated treatment of the subject: see J. Getzler, “Duty of Care” in P.B.H. Birks & A. Pretto (eds.), Breach of Trust (Oxford 2002), 41, at pp. 49–50, n. 25 and the cases cited therein. Both Jones and Story continue to be cited in the modern cases: see e.g. TRM Copy Centres (UK) Ltd. v. Lanwall Services Ltd. [2008] EWCA Civ 382, [2008] 4 All E.R. 608, at [11], [16], [20]. A new edition of Jones' work, edited by David Ibbetson, was published recently (Bangor 2007).

102 J. Story, Commentaries on the Conflict of Laws (Boston 1834). A specially produced English edition followed in 1835.

103 C. Woodard, “Joseph Story and American Equity” (1988) 45 Wash. & Lee L. Rev. 623, 635.

104 See W.W. Story, Life and Letters of Joseph Story (Boston 1851), vol. 2, pp. 235–238, 303–304, 439–447. On Story's academic and judicial career generally, see R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (North Carolina 1985).

105 No other book on equity “equalled in renown and longevity” Story's work: T.F.T. Plucknett, A Concise History of the Common Law, 4th ed., (London 1948), pp. 272–273. See also W. Holdsworth, A History of English Law (London 1922–1966), vol. 15, p. 371.

106 House of Lords, 7th April 1843, reproduced in Story, Life and Letters (Boston 1851), vol. 2, p. 652.

107 (1845–46) 3 Law Review & Quarterly Journal of British & Foreign Jurisprudence 366, 368.

108 See e.g. G. Spence, The Evils and Abuses of the Court of Chancery and Proposed Amendments (London 1831).

109 G. Spence, The Equitable Jurisdiction of the Court of Chancery, 2 Volumes (London 1847 & 1850).

110 Ibid., vol. 2, p. 945. See also the discussion at p.300 and the corresponding principle stated in the Table of Contents, which reads “Any person holding a fiduciary character, obtaining a benefit in that character, is Trustee of it for the Cestui que Trust”: ibid., at p. xxv.

111 Spence further cites Bulkley v. Wilford (1834) 8 Bligh N.S. 111. However, this case was decided by reference to the independent principle that an attorney should not be allowed to take advantage of his own negligence, there was a cumulative finding of fraud and the property was held on trust not for the principal but for the third party who would have received the property but for the attorney's negligent/fraudulent advice.

112 J.W. Smith A Manual of Equity Jurisprudence, Founded on Story's Commentaries and Spence's Equitable Jurisdiction, 3rd ed., (London 1854). The work, intended primarily as an up to date student text, ran until a fifteenth edition in 1900.

113 Ibid., at p. 155. See also T.A. Roberts, The Principles of the High Court of Chancery, 2nd ed., (London 1857), p. 96.

114 See T. Lewin, A Practical Treatise on the Law of Trusts and Trustees (London 1837), pp. 201–224, discussing lease renewals, the conversion of trust property and the bona fide purchaser rule.

115 T. Lewin, A Practical Treatise on the Law of Trusts and Trustees, 2nd ed., (London 1842), p. 170.

116 Citing East India Company v. Henchman (1791) 1 Ves. Jun. 287, considered above, note 68 and accompanying text.

117 Citing Fawcett v. Whitehouse (1829) 1 Russ. & M. 132 (explained above, notes 78–80 and accompanying text) and Hichens v. Congreve (1828) 1 Russ. 562 (considered above, note 76).

118 2nd ed., p. 179.

119 J. Mowbray, Lewin on Trusts, 16th ed., (London 1964), p. 141. There were significant structural changes to the treatment of constructive trust from the 17th ed. (London 2000) but the automatic link between breach of fiduciary loyalty and constructive trust remains: see now the 18th ed. (London 2008), p. 589.

120 Other established works that referred to Keech during this period similarly tended to confine the case to the leasehold context: see e.g. F.W. Sanders, An Essay on Uses and Trusts, 4th ed., (London 1824), vol. 1, p. 336.

121 Most adopted elements of Lewin's distinctive phraseology, such as the metaphor of a person being “clothed with a fiduciary character” acquiring profit through the “medium” of trusteeship: e.g. A. Underhill, A Concise Manual of the Law Relating to Private Trusts and Trustees (London 1878), p. 77; A. Underhill, A Concise Guide to Modern Equity: Being a Course of Nine Lectures (London 1885), p. 69; H.A. Smith, A Practical Exposition of the Principles of Equity, 2nd ed., (London 1888), p. 84.

122 J. McLaren, A Treatise on the Law of Trusts and Trust Settlements (Edinburgh 1863), vol.1, p. 200; H. Godefroi, The Law Relating to Trusts and Trustees, 2nd ed., (London 1891), p. 193.

123 F.T. White & O.D. Tudor, A Selection of Leading Cases in Equity, 7th ed., by T. Snow (London 1897).

124 See e.g. Volume 1 of the first edition (London 1849), at p. 33, and Volume 1 of the sixth edition (London 1886), at p. 54.

125 7th ed., vol. 2, p. 694.

126 Ibid., at p. 695.

127 Aberdeen Town Council v. Aberdeen University (1876–77) 2 App. Cas. 544 (discussed above, notes 96–98 and accompanying text) and Docker v. Somes (1834) 2 My. & K. 655 (considered above, note 98).

128 Thomas Snow, by now almost sixty, was called to the bar in 1865. He seems to have developed a solid reputation as a barrister and appeared before the Court of Appeal and House of Lords on a number of occasions, usually in cases concerning the winding-up of companies and building societies (e.g. Walton v. Edge (1884–1885) App. Cas. 33). He also edited two works for practitioners: The Annual Chancery Practice (first published in 1882, later renamed The Annual Practice and frequently referred to as Snow's Annual Practice) and The Annual (Winding Up) Practice (first published in 1892).

129 See S. Cretney, “The Rationale of Keech v. Sandford” (1969) 33 Conv. 161, 164–167.

130 Ibid., at p. 167.

131 Although it is quite possible that Thomas Snow, who had practiced at the Bar for over thirty years by the time he edited Leading Cases, was in fact aware of the historical significance of the “tenant right” since for much of the second half of the nineteenth century the courts were faced with the task of working out problems created by the cessation of the practice of renewal: see e.g. Phillips v. Phillips (1885) 29 Ch. D. 673; Re Lord Ranelagh's Will (1884) 26 Ch. D. 590; Re Wood's Estate (1870) 10 Eq. 572. This was, however, outside Snow's usual area of practice.

132 E.A. Jelf, Where to Find Your Law (London 1897), p. 142.

133 (1921) 30 C.L.R. 80.

134 Ibid., at pp. 97–98.

135 [1958] S.C.R. 314, 337. See also Cook v Cook (1914) 17 D.L.R. (4th) 661.

136 W.H.H. Kelke, An Epitome of Leading Cases in Equity Founded on White & Tudor's Selection (London 1901), p. 17; J. Indermaur, A Manual of the Principles of Equity: A Concise and Explanatory Treatise Intended for the Use of Students & The Profession, 5th ed., (London 1902), pp. 55–56; W.G. Hart, A Digest of the Law Relating to Private Trusts and Trustees (London 1909), pp. 117, 119. See also J.W. Smith, A Manual of Equity Jurisprudence, 15th ed., (London 1900), p. 171 (retaining the formulation that had appeared since the third edition, discussed above, notes 112–113 and accompanying text).

137 (1890) 45 Ch. D. 1.

138 The exception is generally limited to some agency relationships or to the receipt of benefits under illegal bargains: A. Thomson, A Compendium of Modern Equity: Intended Chiefly for the Use of Practitioners in the Chancery Division of the High Court of Justice (London 1899), p. 35; A. Underhill, A Practical and Concise Manual of the Law Relating to Private Trusts and Trustees, 5th ed., (London 1901), pp. 127–128, 131. The then editor of Lewin maintained that profiting agents and other confidential persons remained accountable as constructive trustees “but until some judgment or decree has been obtained the money cannot be said to be the money of the principal”: T. Lewin, A Practical Treatise on the Law of Trusts, 9th ed., by C.M. Dale (London 1891), p. 196.

139 See especially F.T. White & O.D. Tudor, A Selection of Leading Cases in Equity, 7th ed., by T. Snow (London 1897), where the exception is ignored in the notes to Keech v Sandford but admitted in the notes to Fox v. Mackreth (1788) 2 Bro. C.C. 400, (1791) 4 Bro. P.C. 258, a full 47 pages after the broad remedial principle is formulated (see vol. 2, at p. 742).

140 See W. Ashburner, Principles of Equity (London 1902), pp. 424–425; J. A. Strahan & G.H.B. Kenrick, A Digest of Equity (London 1905), pp. 186–187; A.N.M. Wilshere, The Principles of Equity (London 1920), pp. 135–136.

141 A.W. Scott, “Constructive Trusts” (1955) 71 L.Q.R. 39, 47 (emphasis original).

142 Powell & Thomas v. Evan Jones & Co. [1905] 1 K.B. 11, 19; Wilsons & Furness-Leyland Line Ltd. v. British & Continental Shipping Co. Ltd. (1907) 23 T.L.R. 397; Attorney General v. Goddard (1929) 98 L.J.K.B. 743; Regal (Hastings) v. Gulliver [1942] 1 All E.R. 378, 393; Attorney General's Reference (No 1 of 1985) [1986] Q.B. 491, 504–505; Islamic Republic of Iran Shipping Lines v. Denby [1987] 1 Lloyd's Rep. 367, 371.

143 See, most notably, A.J. Oakley, Constructive Trusts, 2nd ed., (London 1987), pp. 49, 83. In the subsequent edition Oakley approves of Attorney-General for Hong Kong v Reid [1994] 1 A.C. 324 not on policy grounds but on the ground that it removes the anomalous exception to the general principle: A.J. Oakley, Constructive Trusts, 3rd ed., (London 1997), pp. 134–137.

144 See e.g. P.V. Baker & P. St. John Langan, Snell's Principles of Equity, 28th ed., (London 1982), pp. 195–196; R. Maudsley, Hanbury & Maudsley: Modern Equity, 10th ed., (London 1976), p. 312; D.R. Parker & A.R. Mellows, The Modern Law of Trusts (London 1966), p. 121. Keeton's text is particularly notable for its identification of fiduciary gain as the sine qua non of the constructive trust (notwithstanding its inclusion of some non-fiduciary constructive trusts), for its link between Keech and the broad remedial principle, and for its struggle to reconcile Lister v Stubbs with this principle: see G.W. Keeton, The Law of Trusts, 4th ed., (London 1947), pp. 31–32, 190, 201–202, 208.

145 The powerful “Chancellor's foot” aphorism was formulated in the seventeenth century by John Selden: J. Selden, Table Talk: Being the Discourses of John Selden (London 1689), p. 18. Conceived thus, equity was illegitimate since it was inconsistent with the fundamental idea of liberty: see D. Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain (Cambridge 1989), pp. 78–79.

146 Gee v. Pritchard (1818) 2 Swan. 402, 414. See also Case of the Queensberry Leases (1819) 1 Bligh P.C. 339, 501 per Lord Redesdale (rejecting Selden's “facetious” aphorism).

147 G. Jeremy, A Treatise on the Equity Jurisdiction of the High Court of Chancery (London 1828), p. vi. See also J. Story, Equity Jurisprudence as Administered in England and America (Boston 1836), vol. 1, §§18–23. The note to the reader in the first printed book on equity, published one century earlier, similarly points out its rationale as being to dispel the “common objection against our Courts of Equity” that their determinations are “precarious” and not “circumscribed within the limits of positive Laws”: R. Francis, Maxims of Equity (London 1727).

148 H. Potter, An Introduction to the History of Equity and its Courts (London 1931), p. 78; D.M. Kerly, An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (Cambridge 1890), p. 266.

149 Lieberman, op. cit., at pp. 79–80.

150 See generally, G. Postema, Bentham and the Common Law Tradition (Oxford 1986); M. Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford 1991), pp. 116–154, 185–222.

151 D. Stewart, Elements of the Philosophy of the Human Mind (Edinburgh 1792), vol. 1, p. 413.

152 Ibid., at p. 414.

153 Most notably H. Maddock, A Treatise on the Principles and Practice of the High Court of Chancery, 1st ed., (London 1815), vol. 1, p. xix.

154 T.H. Haddan, Outlines of the Administrative Jurisdiction of the Court of Chancery (London 1862), p. x.

155 Ibid.

156 The most illuminating account of the theoretical underpinnings of the nineteenth century treatise remains A.W.B Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 U. Chi. L. Rev. 632. See also D. Sugarman, “Legal Theory, The Common Law Mind and the Making of the Textbook Tradition” in W. Twining (ed.), Legal Theory and the Common Law (Oxford 1986), p. 26.

157 The belief reflected the broader intellectual climate of the period in which the concept of a “principle” assumed importance in explaining all social, economic and natural phenomena: see P.S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford 1979), pp. 345–358.

158 Simpson, op. cit., at p. 666.

159 T.F.T. Plucknett, Early English Legal Literature (Cambridge 1958), p. 19.

160 See Simpson, op. cit., at pp. 670–673.

161 Maddock, op. cit., at p. xviii.

162 G. Spence, The Equitable Jurisdiction of the Court of Chancery (London 1850), vol. 2, p. iii.

163 A. Underhill, A Concise Manual of the Law Relating to Private Trusts and Trustees (London 1878), pp. vi–vii, quoting J.F. Stephen, A Digest of the Law of Evidence (London 1876), p. vii.

164 For a graphical illustration of the hierarchy of trust law principles see the tabular analysis in Lewin's treatise, which follows the preface in the 2nd to the 12th editions of the work.

165 F.T. White & O.D. Tudor, A Selection of Leading Cases in Equity, with Notes, 1st ed., (London 1849), vol. 1, p. vi.

166 Consider Lewin's definition of the constructive trust, note 115 above and accompanying text.

167 “For this court of equity the ancient rule is good. Three things are to be judged in court of conscience: covin, accident, and breach of confidence”: Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England (London 1797), p. 84.

168 J. Story, Equity Jurisprudence as Administered in England and America (Boston 1836), vol. 1, chs. 6–7.

169 Indeed, many fiduciary cases made no distinction between actual and constructive fraud, and the fraud label remained in use as a descriptor of simple breaches of fiduciary obligation until the end of the century: see e.g. Boston Deep Sea Fishing & Ice Co. v. Ansell (1888) 39 Ch. D. 339, 368 per Fry L.J.

170 Thus, Joseph Story reasoned that the fiduciary's gain belongs to the principal “for it is a constructive fraud on the latter”: see above, note 100 and accompanying text.

171 For the cases of fraud – actual or constructive – that triggered a constructive trust see J. Hill, A Practical Treatise on the Law Relating to Trustees (London 1845), pp. 116–146.

172 The process is described in D.W.M. Waters, The Constructive Trust (London 1964), pp. 39–43.

173 Ibid., at p. 42.

174 D. Sugarman, “Legal Theory, The Common Law Mind and the Making of the Textbook Tradition” in W. Twining (ed.), Legal Theory and the Common Law (Oxford 1986), 26, at p. 54.

175 O.W. Holmes, The Common Law (Boston 1881), p. 1.

176 Ibid.

177 See e.g. Lord Reid, “The Judge as Law Maker” (1972) 12 J.S.P.T.L. 22; T. Bingham, “The Judge as Law Maker: An English Perspective” in P. Rishworth (ed.), The Struggle for Simplicity in the Law: Essays for Lord Cook of Thorndon (Wellington 1997), p. 3.

178 Kleinwort Benson v. Lincoln City Council [1999] 2 A.C. 349, 377 per Lord Goff; In re Spectrum Plus Ltd. (in liquidation) [2005] UKHL 41, [2005] 2 A.C. 680, at [32]–[34] per Lord Nicholls.

179 See N. Duxbury, The Nature and Authority of Precedent (Cambridge 2008).

180 As encapsulated in the oft-quoted dictum “in law context is everything”: see e.g. Stack v. Dowden [2007] UKHL 17, [2007] 2 A.C. 432, at [69] per Baroness Hale; R. (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 A.C. 532, at [28] per Lord Bingham.

181 On the relationship between modern legal information management and doctrinal development see further R.C. Berring, “Legal Research and Legal Concepts: Where Form Moulds Substance” (1987) 75 Cal. L. Rev. 15.

182 P.S. Atiyah, Pragmatism and Theory in English Law (London 1987), p. 27.

183 [1997] R.P.C. 289.

184 Ibid., at p. 416.

185 The claimant was a vexatious litigant whose motive from the outset seems to have been the destruction of the defendant's legitimate competing business.

186 Warman International Ltd. v. Dwyer (1995) 69 A.L.J.R. 362, 369.

187 Farah Construction Pty. Ltd. v. Say-Dee Pty. Ltd. [2007] HCA 22, 236 A.L.R. 209, at [201].

188 Warman International v. Dwyer (1995) 69 A.L.J.R. 362, 365, 371.

189 Hence the popularity of “unjust enrichment” and “interceptive subtraction” analyses as means of limiting proprietary relief on insolvency: see R.M. Goode, “Property and Unjust Enrichment” in A. Burrows (ed.), Essays on the Law of Restitution (Oxford 1991), p. 215; T.G. Youdan, “The Fiduciary Principle: The Applicability of Proprietary Remedies” in T.G. Youdan (ed.), Equity, Fiduciaries and Trusts (Toronto 1989), 93, at pp. 107–108.

190 The added security is likely to encourage parties to adopt the fiduciary relationship and avoid additional monitoring costs. It also provides an outcome that is difficult to replicate by contract but is what the parties are likely to want. Transaction costs are therefore also likely to be reduced. If these benefits are greater than the costs created by transferring additional risk to the fiduciary's creditors then priority may be justified on efficiency grounds. For analogous arguments, see H. Hansmann & U. Mattei, “The Functions of Trust Law: A Comparative Legal and Economic Analysis” (1998) 73 N.Y.U.L. Rev. 434.

191 Daraydan Holdings Ltd. v. Solland International Ltd. [2004] EWHC 622 (Ch), [2005] Ch. 119, at [86] (Lawrence Collins J.); Sir Peter Millett, “Remedies: The Error in Lister v Stubbs” in P.B.H. Birks (ed.), Frontiers of Liability (Oxford 1994), vol. 1, 51, at pp. 52, 56.

192 For more detailed discussion of the purported justifications for priority in cases in which the principal loses nothing, see C. Rotherham, Proprietary Remedies in Context (Oxford 2002), pp. 178–181; R. Grantham, “Doctrinal Bases for the Recognition of Property Rights” (1996) 16 O.J.L.S. 561, 578–579.

193 Dawson asserts the contrary, claiming the purpose of the constructive trust “was always plain enough, to promote the creation of preferences”: J. Dawson, Unjust Enrichment: A Comparative Analysis (Boston 1951), p. 29. However, there is no evidence to support this assertion.

194 A rare exception is ex parte Grace (1799) 1 Bos. & P. 379. However, this seems to have been a case of a customarily renewable lease, hence the renewal was probably treated as the fruit of existing trust property and recovery by the beneficiary viewed as part of the content of the his property rights in the original lease.

195 V. Finch & S. Worthington, “The Parri Passu Principle and Ranking Restitutionary Rights” in F. Rose (ed.) Insolvency and Restitution (London 2000), p. 1.

196 [1994] 1 A.C. 324, 326–327.

197 See G. McCormack, “Restitution, Policy, and Insolvency” in F. Rose (ed.), Restitution and Insolvency (London 2000), p. 261, 268–269.

198 D.M. Wright, The Remedial Constructive Trust (Sydney 1998); S. Evans, “Defending Discretionary Remedialism” (2001) 23 Syd. L. Rev. 463; D.W.M. Waters, “Liability and Remedy: An Adjustable Relationship” (2001) 64 Sask. L. Rev. 429.

199 J.D. Davies, “Duties of Confidence and Loyalty” [1990] L.M.C.L.Q. 4, 5.

200 R.P. Austin, “The Melting Down of the Remedial Trust” (1988) 11 U.N.S.W.L.J. 66, 85.

201 [1997] R.P.C. 289, 415–416, quoting with approval the observations of La Forest J. in Lac Minerals Ltd. v. International Corona Resources Ltd. (1989) 61 D.L.R. 4th 14, 51.

202 See further Lord Napier & Ettrick v Hunter [1993] A.C. 713, where it was accepted that authority pointed to the imposition of a constructive trust but a lien was imposed as a more appropriate remedy for practical and commercial reasons: ibid., at p. 738 per Lord Templeman, p. 744 per Lord Goff, p. 752 per Lord Browne-Wilkinson.

203 Re Edward's Will Trusts [1982] 1 Ch. 30, 40.