Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-26T06:33:58.207Z Has data issue: false hasContentIssue false
  • English
  • Français

Confidence and the constructive trust

Published online by Cambridge University Press:  02 January 2018

Tang Hang Wu
Tang Hang Wu*
Affiliation:
National University of Singapore, (Singapore), (England and Wales)
Get access Rights & Permissions [Opens in a new window]

Abstract

Almost every leading work on the law of confidence mentions the possibility of a declaration of a constructive trust as a remedy for a claim involving an abuse of confidence. Apart from the Canadian Supreme Court, no other appellate court in the Commonwealth has seriously debated this issue. This paper investigates the legitimacy of the use of the constructive trust in this context.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 1 , March 2003 , pp. 135 - 152
Copyright
Copyright © Society of Legal Scholars 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See Maitland, F W Equity A Course of Lectures (Cambridge: Cambridge University Press, 2nd edn, 1936) p 7 Google Scholar. Cited as ‘Three things are to be helpt in Conscience; Fraud, Accident and things of Confidence’ (1 Rolle's Abridgement 374) by Megarry J in Coco v A N Clark [1968] FSR 415 at 420–421. Cf R G Hammond ‘The Origins of the Equitable Doctrine of Breach of Confidence’ [1979] Anglo-Am LR 71, who traced the origins of the action to early decisions on copyright of unpublished works.

2. [2001] 2WLR992:see N Moreham (2001)64 MLR 767; M Elliott (2001) 60 CLJ 231; R Singh and J Strachan ‘The Right To Privacy In English Law’ (2002) 2 EHLR 129.

3. [2001] 2 WLR 992 at 1035.

4. Lac Minerals v International Corona Resources (1989) 61 DLR (4th) 14: see D W M Waters (1990) 69 Can BR, P D Maddaugh’ Confidence Abused: Lac Minerals Ltd v International Corona Resources Ltd (1990) 16 Can Business Law J 198; JD Davies ‘Duties of Confidence and Loyalty’ [1990] LMCLQ 4; P Birks ‘The Remedies For Abuse of Confidential Information’ [1990] LMCLQ 460; G Hammond ‘Equity And Abortive Commercial Transactions’ (1990) 106 LQR 207.

5. See Goff, R and Jones, G The Law of Restitution, (London: Sweet & Maxwell, 6th edn, 2002) pp 79–80 Google Scholar. See also Virgo, G The Principles of the Law of Restitution (Oxford: Oxford University Press, 1999) pp 598–599 Google Scholar.

6. Eg see G Jones ‘Benefits Obtained in Breach of Confidence’ (1970) 86 LQR 463; and Gurry, F Breach of Confidence (Oxford: Oxford University Press, 1984).Google Scholar

7. See eg Cornish, W R Intellectual Property: Patents, Copyright, Trade Marks arid Allied Rights (London: Sweet & Max well, 4th edn, 1999) pp 331–332 Google Scholar; Goff and Jones, n 5 above, pp 756, 764–765; Ricketson, S The Law of Intellectual Properly: Copyright, Designs & Confidential Information (Sydney: LBC Information Services, 2nd edn, 1999) paras 27–100Google Scholar: Richardson, M and Stuckey-Clarke, J ‘Breach of Confidence’ in Parkinson, P (ed) The Principles of Equity (Sydney: LBC Information Services, 1996)Google Scholar pp 46H70; Clerk & Lindsell on Torts (London: Sweet & Maxwell, 2000) p 1539; Bently, L and Sherman, B Intellectual Property Law (Oxford: Oxford University Press. 2001) pp 974–976.Google Scholar

8. [1990] 1 AC 109 at 288. See also Lord Keith at 263. where he said: ‘There remains of course, the question of whether the Crown might successfully maintain a claim that it is in equity the owner of the copyright in the book. Such a claim has not yet been advanced, but might well succeed if it were to be.’

9. In other areas of intellectual property, the courts have ordered the defendant to transfer the intellectual property right to the claimant. See Missing Link Software v Magee [1989] 1 FSR 361 (copyright in a computer program). See also, generally, British Syphon Co Ltd v George Sidney Homewood [1956] 73 RPC 225; and Patchett v Sterling Engineering Co Ltd [1955] 72 RPC 50 (where the defendant was made to assign the patent to the claimants).

10. [1999] 3 All ER 652: see C A Freedman ‘Confidential Commercial Information and Breach of Fiduciary Duty - The Liability of Third Parties in Knowing Receipt To Make Restitution’ [2000] Intellectual Property Q 208.

11. [2000] 2 BCLC 461.

12. [1997] RPC 289: see B Gray ‘Ocular Sciences: A New Vision for the Doctrine of Breach of Confidence?’ (1999) 23 MULR 241.

13. See eg P J Millett ‘Equity - The Road Ahcad’ (1995) 9 Trust Law Int 35: L D Smith ‘Constructive Trusts And Constructive Trustees’ (1999) 58 CLJ 294; P J Millett ‘Restitution And Constructive Trusts’ (1998) 114 LQR 399.

14. See Poragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 at 408–410.

15. L D Smith ‘Constructive Trusts And Constructive Trustees’ (1999) 59 CLJ 194 at 301.

16. See eg Satnam Investments Ltd v Dunlop Heywood & Co Ltd [1999] 3 All ER 652, where the Court of Appeal appeared to have conflated the equitable duty to account and the constructive trust.

17. (1989) 61 DLR (4th) 14.

18. Sopinka, Lamer and Mclntyre JJ. Cf La Forest and Wilson JJ held that there was a fiduciary obligation not to misuse the information.

19. (1989) 61 DLR (4th) 14 at 45. per La Forest J. See also Bently, L and Sherman, B Intellectual Property Law (Oxford: Oxford University Press, 2001) p 975 Google Scholar.

20. (1989) 61 DLR (4th) 14.

21. (1989) 61 DLR (4th) 14 at 47. per La Forest J.

22. (1989) 61 DLR (4th) 14 at 48–52, per La Forest J.

23. (1989)61 DLR (4th) 14at 17, per Lamer J.

24. (1989) 61 DLR (4th) 14 at 51–52, per La Forest J.

25. See Goode, R ‘Property and Unjust Enrichment’ in Burrows, A (ed) Essays on the Law of Restitution (Oxford: Oxford University Press, 1991) p 215 Google Scholar; Goode, R ‘Proprietary Restitutionary Claims’ in Cornish, W R (ed) Restitution Past Present and Future (Oxford: Hart Publishing, 1998) p 63.Google Scholar

26. [1994] 1 AC 324.

27. Wrongful interception of a specific and unique property must be distinguished from the ‘interceptive subtraction’ debate in the law of unjust enrichment. The latter deals with the problem of creating a necessary link to show that the defendant's enrichment was at the expense of the claimant. In a breach of confidence, it is the wrong that creates the link between the claimant and the defendant. The privity issue is therefore not crucial. See A Burrows The Law of Restitution (London: Butterworths, 2nd edn, 2002) pp 31–32.

28. (1989) 61 DLR (4th) 14 at 51.

29. See Pallant v Morgan [1953] Ch 43. [1952] 2 All ER 951, [1952] 2 TLR 813.

30. [2000] Ch 372: see M P Thompson ‘Constructive Trusts and Non-Binding Agreements’ [2001] Conv 265.

31. Lac Minerals v International Council Resources (1989)61 DLR (4th) 14.

32. See N Hophns ‘The Pallant v Morgan “Equity”’ [2002] Conv 35 for the conceptual difficulties with this decision. The judge borrowed principles horn the laws of constructive trust, estoppel and restitution. Perhaps, a better explanation of the case is one based on a contractual analysis. The observations of S Hedley ‘Work Done In Anticipation Of A Contract Which Does Not Materialise: A Response’ in Cornish, n 25 above. pp 195, 197, albeit in another context, is equally apt here. He argues: ‘But why should contract be excluded’? Why should parties' hope that they would make a big contract prevent a finding that they have in fact made a more modest one? Why should the courts ignore good evidence of a contract‘? The court can simply enforce the agreement the parties actually made, vague though it might be, and leave aside the parties' fantasies as to agreements which they might have reached in other circumstances.’

33. See S Worthington ‘Proprietary Remedies: The Nexus Between Specific Performance And Constructive Trust’ (1996–97) 11 JCL 1.

34. See A-G v Blake [2001] 1 AC 268.

35. J O'Sullivan ‘Reflections On The Role of Restitutionary Damages To Protect Contractual Expectations’ in D Johnston and R Zimmerman (eds) Unjustified Enrichment (Cambridge: Cambridge University Press, 2002) pp 327, 334. Much has been written on the House of Lords' decision in A-Gv Blake: see eg A Phang and P W Lee ‘Rationalising Restitutionary Damages In Contract Law - An Elusive Or Illusory Quest’ [2001] 17 JCL 240; M McInnes ‘Gain Based Relief For Breach Of Contract: Attorney General v Blake’ [2001] 35 Can Business Law J 72; J Edelman ‘Restitutionary Damages And Disgorgement Damages For Breach Of Contract’ [2001] RLR 129. See also D Campbell and D Harris ‘In Defence Of Breach: A Critique Of Restitution And The Performance Interest’ (2002) 22 LS 208, who argue that the award of restitutionary damages for a breach of a commercial contract is incompatible with the operation of a market economy.

36. Lac Minerals v International Corona Resources (1989) 61 DLR (4th) 14 at 51.

37. Scc n 9 above for cases where specific restitution were ordered in the context of other intellectual property rights.

38. Cf P Birks ‘Rights, Wrongs And Remedies’ (2000) OJLS 1: P Birks ‘Three Kinds Of Objection To Discretionary Remedialism’ (2000) 29 W Australian LR I, who argues that the development of discretionary remedialism is undesirable. However, the present author is more persuaded by S Evans ‘Defending Discretionary Remedialism’ (2001) 23 Syd LR 463: and D Wright ‘Wrong and Remedy: A Sticky Relationship’ [2001] Sing JLS 300.

39. See R E Hawkins ‘Lac And The Emerging Obligation To Bargain In Good Faith’ (1990) 15 Queen's LJ 65.

40. The literature on good faith is voluminous. See generally M Clarke’ The Common Law of Contract in 1993: Is There A General Doctrine of Good Faith? (1993) 23 HKLJ 318; E McKendrick ‘Work Done In Anticipation Of A Contract Which Does Not Materialise’ in Cornish, n 25 above, pp 163, 186–91; J W Carter and M P Furmston ‘Good Faith and Fairness in Negotiations of Contracts’ (1994) 8 JCL I : Cohen, N ‘Good Faith and Fault in Contract Law’ in Beatson, J and Friedmann, D (eds) Good Faith And Fault in Contract Law (Oxford: Oxford University Press, 1995) p 25 Google Scholar: J M Paterson ‘The Contract to Negotiate in Good Faith: Recognition and Enforcement’ (1996) 10 JCL 120. See also A F Mason ‘Contract. Good Faith And Equitable Standards In Fair Dealing’ (2000) 116 LQR 66: P Y Woo ‘Protecting Parties Reasonable Expectations: A General Principle of Good Faith’ [2001] OU Commonwealth LJ 195.

41. [1992] 2 AC 128. See also BJ Davenport ‘Lock-Out Agreements’ (1991) 107 LQR 366; I Brown ‘The Contract To Negotiate: A Thing Writ in Water’ [1992] JBL 353; P Neill ‘A Key to Lock-Out Agreements’? (1992) 108 LQR 405; J Cumberbatch ‘In Freedom's Cause: The Contract to Negotiate’ (1992) 12 OJLS 586: E Peel ‘“Locking-Out” and “Locking-In”: The Enforceability of Agreements to Negotiate’ (1992)51 CLJ 211:B Jamieson ‘Lock-Out Agreement is Unenforceable’ [1992] LMCLQ 16.

42. [1992] 2 AC 128 at 138. Cf McKendrick, E ‘Good Faith: A Matter of Principle?’ in Forte, A D M (ed) Good Faith in Contract And Property (Oxford: Hart Publishing. 1999) p 39.Google Scholar

43. In Coco v A N Clark [1968] FSR 415 at 420–421, Megarry J described confidence as the cousin of trust.

44. See L S Scaly ‘Fiduciary Relationships’ (1962) CLJ 69: RG Hammond ‘The Origins of the Equitable Duty of Confidence’ [1979] Anglo-Am LR 7; see J Phillips ‘Prince Albert and the Etchings’ (1984) 12 EIPR 344.

45. See Meagher, R P, Gummow, W M C and Lehane, J R F Equity Doctrines and Remedies (Sydney: Butterworths, 3rd edn, 1992) pp 869–870Google Scholar, where the learned editors explained that the reference of the classic authorities to ‘trust and confidence’ was made when both terms were used interchangeably. They are of the opinion that the better view is that the equitable duty of confidence be regarded as a specific field of its own.

46. See J Glover’ Is Breach of Confidence A Fiduciary Wrong‘? Preserving the Reach of Judge-Made Law’ (2001) 21 LS 594; Birks, P An Introduction to the Law of Restitution (Oxford: Oxford University Press, 1994) pp 332–333 Google Scholar; P Birks ‘The Content of Fiduciary Obligation’ (2002) 16 Trust Law Int 34.

47. Keech v Sanford (1726) Sel Cas Ch 61.

48. See Saltman v Campbell (1948) 65 RPC 203; see also G Jones ‘Restitution of Benefits Obtained in Breach of Another's Confidence’ (1970) 86 LQR 463 at 466; and Cornish.n 7 above, pp 305–307.

49. Gurry, F Breach of Confidence (Oxford: Oxford University Press, 1984) pp 58–60 Google Scholar; Guny, F ‘Breach of Confidence’ in Finn, P D (ed) Essays in Equity (Sydney: The Law Book Company Ltd, 1985) p 110 Google Scholar. This analysis seems to have the support of Binnie J of the Supreme Court of Canada in Cadbury Schweppes Inc v FBI Foods (1999) 167 DLR (4th) 57.

50. See M Richardson’ Whither Breach of Confidence: A Right of Privacy For Australia‘?’(2002) 26 MULR 381.

51. This development is heartening as it was only ten years ago that it was emphatically said that English law does not recognise the tort of privacy: see Kaye v Robertson [1991] FSR 62.

52. [2001] 2 WLR 992.

53. [2001] 2 WLR 992 at 1025.

54. Cf E I Du Pont de Nemours & Co Inc v Christopher (1970) 431 F 2d 1012 at 1015, which referred to ‘commercial privacy’.

55. See J Edelman ‘Equitable Torts’ (2002) 10 Torts LJ 64.

56. See A M Tettenborn ‘Damages For Breach of Confidence: An English Perspective’ (1987) Intellectual Property J 181 at 197. See also G Wei ‘Surreptitious Takings of Confidential Information’ (1992) 12 LS 302 at 304, who described the test for determining liability set out by Megarry J in Coco v A N Clark as being ‘Atkinian’ in nature. A rival characterisation is to see a breach of confidence as a form of interference with contractual relations. However, as seen by the case of Douglas v Hello! Ltd [2001] 2 WLR 992, it may be quite difficult to establish that the defendants had instigated or been involved in a breach of contractual relations.

57. Birks, P ‘The Concept of a Civil Wrong’ in Owen, D G (ed) Philosophical Foundations of Tort Law , (Oxford: Oxford University Press, 1995) pp 31, 35Google Scholar. See also Law Com no 110 Breach of Confidence (Cmnd 8388, 1981); Clerk & Lindsell on Torts , n 7 above, pp 1517–1540; J Edelman ‘Equitable Torts’ (2002) 10 Torts LJ 64.

58. Eg see P M North ‘Breach of Confidence: Is There A New Tort?’ (1972) 12 LS 149; and Birks, n 46 above, pp 343–347, who argue that the analogy with conversion is a useful one to make. Cf Gurry, n 49 above, p 56, who concludes that the role of tort is a peripheral. See also Cornish, n 7 above, p 306, who, perhaps unfairly, dismisses arguments premised on tortious principles as being attributed to rash disputation by ‘scientifically-minded jurists’.

59. Gurry, n 49 above, p 59.

60. See Lord Goff in A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 281, where he said: ‘I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all circumstances that he should be precluded from disclosing the information to others.’ See also M Richardson ‘Breach of Confidence, Surreptitiously or Accidentally Obtained Information and Privacy: Theory Versus Law’ (1994) 19 MULR 673 at 699.

61. See Cornish, n 7 above, pp 306–307, who perceptively lists down the points that matter in the jurisdiction debate. They are: (a) innocent recipients; (b) circumstances where damages may be awarded for breach; (c) possibility of damages for injury to feelings; (d) liability of indirect recipients; and (e) the effect of dealings that treat the information as property. Although it is beyond the scope of this paper, it is the present writer's view that there are distinct advantages in analysing the law of confidence with reference to the law of negligence, as issues (a)-(d) could be dealt with more effectively. See eg Cadbury Schweppes Inc v FBI Foods (1999) 167 DLR (4th) 577 at 600, where Binnie J suggested that tort principles could have an impact on the assessment of damages for a breach of confidence.

62. [1968] FSR 415 at 420–421.

63. Meagher, Gummow and Lehane, n 45 above. p 51.

64. See Peter Pan Manufacturing Corpn v Corsets Silhouette Ltd [1964] 1 WLR 96; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [19721 RPC 811: A B Consolidated Ltd v Europe Strength Food Co [1978] 2 NZLR 515.

65. See eg Seager v Copydex Ltd [1967] RPC 349: and Aquaculture Corpn v New Zealand Green Mussel Co Ltd (No 2) [1990] NZLR 299. See also Curry, n 49 above, pp 417–427. Cf the courts are more willing to grant an account of profits when the breach of confidence involves a breach of fiduciary as well. See Coleman Taymar Ltd v Oakes [2001] 2 BCLC 749; Normalec Ltd v Britton [1983] FSR 318.

66. Curry, n 49 above. pp 417–427.

67. G Jones ‘Benefits Obtained in Breach of Confidence’ (1970) 86 LQR 463 at 486–488.

68. Goff and Jones, n 5 above, pp 764–765.

69. [1990] NZLR 299. See also Aquaculture Corpn v New Zealand Green Mussel Co Ltd (No 3) (1986) 1 NZIPR 678 at 691.

70. Cf Meagher. Gummow and Lehane. n 45 above. p 4127.

71. See the recent case of Cudbury Schweppes Inc v FBI Foods (1999) 167 DLR (4th) 577, where the Supreme Court of Canada refused to declare a constructive trust.

72. There is a growing disenchantment with the ‘proprietary base’ analysis. It does not explain adequately why a claimant is entitled to enlarge his proprietary base. See C Rotherham ‘Restitution and Property Rites: Reason and Ritual in the Law of Proprietary Remedies’ (2000) 1 Theoretical Inquiries in Law 205 at 228, who argues: ‘The attraction of the notion of a subsisting proprietary base seems to lie in its capacity to suggest that the courts are not involved with the redistribution of property rights. However, the proprietary base is too anaemic and unfamiliar a concept to convince us in this regard.’ His ideas are developed fully in C Rotherham Proprietary Remedies In Context: A Study In The Judicial Redistribution Of Property Rights (Oxford: Hart Publishing. 2002).

73. See Birks, n 46 above, pp 378–379.

74. Birks, n 46 above, p 346.

75. In any case, the debate on the definition of proprietary quality often suffers from the vice of circularity. See K Gray and S F Gray Elements of Land Law (London: Butterworths, 2001) pp 107–110. Gray and Gray point out the absurdity of the inquiry: ‘On conventional reasoning, a claim comprises “property” if enforceable against a stranger; and claims are enforceable against strangers provided that they are proprietary in character. Such propositions are entirely tautological in so far as proprietary character is supposedly made to depend on some criterion of “permanence” or “stability”. It is radical and obscurantist nonsense to formulate a test of proprietary character in this way’ (emphasis in original).

76. See Boardman v Phipps [1967] 2 AC 46 at 128, where Lord Upjohn said that confidential information was not ‘property in any normal sense, but equity will restrain its transmission to another if in breach of some confidential relationship’. See also Satnam Investments Ltd v Dunlop Heywood & Co Ltd [1999] 3 All ER 652. The High Court of Australia has also rejected the proprietary analysis - see Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 at 438. More recently, the property argument was also rejected in Cadbury Schweppes Inc v FBI Foods (1999) 167 DLR (4th) 577. For an examination of why a ‘property approach’ to information should be rejected, see Institute of Law Research and Reform Edmonton, Alberta Trade Secrets Report No 46 (July 1986) pp 137–140. See also Cornish, n 7 above, pp 330–332; Kohler, P and Palmer, N ‘Information as Property’ in Palmer, N and McKendrick, E (eds) Interests in Goods (Lodon: LLP, 1998) p 1 Google Scholar. Cf Linda Chih Ling Koo v Lam Tai Hing (1992) IPR 607.

77. R Goode ‘Proprietary Restitutionary Claims’ in Cornish, n 25 above. p 63.

78. Goode, n 77 above, p 74.

79. Wright, D ‘The Remedial Constructive Trust and Insolvency’ in Rose, F (ed) Restitution and Insolvency (Oxford: Oxford University Press. 2000) pp 212–216Google Scholar: P J Millet ‘Bribes and Secret Commissions’ [1993] RLR 7 at 15–16 criticised this thesis as impractical and impossible to apply in practice; S Worthington ‘Three Questions on Proprietary Restitutionary Claims’ in Cornish. n 25 above, p 7.

80. See D Wright ‘The Remedial Constructive Trust and Insolvency’ in Rose, n 79 above, p206.

81. [1994] 1 AC 334.

82. [1994] 1 AC 324.

83. See P J Millet ‘Bribes and Secret Commissions’ [1993] RLR 7 for a defence of the conclusion reached in Reid. See also P J Millett ‘Equity -The Road Ahead’ (1995) 9 Trust Law Int 35.

84. [1994] 1 AC 324 at 330.

85. P J Millett ‘Restitution And Constructive Trusts’ [1998] 114 LQR 399 at 407.

86. Eg D Crilley ‘A Case Of Proprietary Overkill’ [1994] RLR 57; R A Pearce ‘Personal and Proprietary Claims Against Bribees’ [1994] LMCLQ 189; Swadling, W J ‘Property And Unjust Enrichment’ in Harris, J W (ed) Property Problem From Genes To Pension Funds (London: Kluwer, 1997) pp 130, 141–143.Google Scholar

87. It is doubted that a proprietary remedy would deter an insolvent defendant. Non-acceptance of risk of insolvency per se cannot be an explanation for a proprietary remedy. Eg a tort victim who did not accept risk of insolvency is not granted priority. Next, the ‘windfall’ argument is also suspect because this is not a situation of unjust enrichment but restitution for wrongs. Finally, the risk of dissipation argument is better dealt with an application for a freezing order.

88. 122 NE 378 (NY, 1919).

89. 122 NE 378 at 380, 381 (NY, 1919). See also Baumgartner v Baumgartner (1987) 164 CLR 137 at 147, where Mason CJ and Wilson and Deane JJ said that: ‘the foundation for the imposition of a constructive trust… is that [the defendant's] refusal to recognise the existence of [the claimant's] equitable interest amounts to unconscionable conduct and …the trust is imposed as a remedy to circumvent that unconscionable conduct.’

90. [1996] AC 669 at 705. See also Paragon Finance plc v D B Thakerar & Co [1999] 1 All ER 400.

91. Goff and Jones, n 5 above, pp 764–765.

92. Lac Minerals v International Corona Resources (1989) 61 DLR (4th) 14 at 51.

93. See Royal Brunei Airlines v Tan [1995] 2 AC 378 at 392.

94. A Leff ‘Unconscionability And The Code - The Emperor's New Clause’ (1967) 115 UPaLR 485 at 557–559.

95. Pollock, F (ed) The Table Talk of John Selden (London: Quaritch, 1927) p 43.Google Scholar

96. P Birks ‘Equity in the Modern Law: An Exercise in Taxonomy’ (1996) 26 W Australian LR 1 at 16–17; P Birks ‘Annual Miegunyah Lecture: Equity, Conscience and Unjust Enrichment’ (1999) 23 MULR 1 at 17–23. See also D R Klinck ‘The Unexamined “Conscience” of Contemporary Canadian Equity’ (2001) 46 McGill LJ 571 at 610–611, where Klinck concludes tentatively ‘that the persistence of conscience … is simply a matter of inertia. The word is part of the traditional discourse of equity, and it is simply being reiterated in an “automatic” way’. See A F Mason ‘Contract, Good Faith And Equitable Standards In Fair Dealing’ (2000) 116 LQR 66.

97. Birks, n 96 above. at 16–17.

98. See W J Swadling ‘Property and Conscience’ (1998) 12 Trust Law Int 228 for a thorough analysis of trusteeship arising without knowledge and wrongdoing of the defendant. See also Chambers, R Resulting Trusts (Oxford: Oxford University Press, 1997) pp 203–210.CrossRefGoogle Scholar

99. See Virgo, n 5 above, pp 630–634 on the formidable problems of using conscience as the touchstone of the constructive trust. Two aspects need to be worked out - the degree of fault required and the point in time that the defendant's conscience is said to be affected.

100. Lac Minerals v International Corona Resources (1989) 61 DLR (4th) 14.