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Published online by Cambridge University Press: 02 January 2018
This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the ‘commercialisation’ of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that flexibility is a lack of doctrinal coherence and the development of equitable principles that will apply in, and beyond, the commercial context. We also argue that this trend has important implications for the coming rounds of Supreme Court appointments.
A previous version of this paper was presented at the Eighth Biennial Conference on the Law of Obligations at the University of Cambridge in July 2016. We are grateful to those who attended, and especially Elise Bant, Michael Bryan, Robert Chambers, Tatiana Cutts, Jamie Glister, Lusina Ho, Rebecca Lee, Charles Mitchell, Andrew Robertson, Graham Virgo and Sarah Worthington, for helpful comments, All views, and any errors, are our own.
1. Thanakharn Kasikorn Thai Chamkat v Akai Holdings [2010] HKCU 2362 at [145] (Lord Neuberger NPJ).
2. Holdsworth, WS Some Makers of English Law (Cambridge: Cambridge University Press, 1938) p 72 Google Scholar.
3. Lawton J in Rondel v Worsley [1967] 1 QB 443 at 459. Professor Holdsworth recorded that ‘Cardinal Wolsey was the last of the ecclesiastical Chancellors of the medieval type. He was replaced in 1529 by Sir Thomas More - an eminent common lawyer and the son of a common law judge’: WS Holdsworth ‘The influence of Roman law on English equity’ in Essays in Law and History (Oxford: Oxford University Press, 1946) pp 193-194.
4. AW Scott, Trusts §1.1. See also G Glen ‘St Thomas More as judge and lawyer’ (1941) 10 Fordham L Rev 187 at 193: ‘in the great idea of equity to which he turned his energies, St. Thomas More was quite modern, just as he was in all other things’. On the other hand, Hanbury does not mention More at all in his ‘Historical sketch of equity’, offered as ch 1 of the first edition of Modern Equity (London: Stevens & Sons, 1935).
5. Lord Neuberger ‘Equity - the soul and spirit of all law or a roguish thing?’ Lehane Lecture 2014, Supreme Court of New South Wales, Sydney, 4 August 2014; available at https://www.supremecourt.uk/docs/speech-140804.pdf (accessed 28 September 2016).
6. [2014] AC 1189.
7. [2014] UKSC 45.
8. [2014] UKSC 58.
9. [2016] 3 WLR 399 at [170].
10. There is an imperfect parallel with the contractual interpretation cases. See Arnold v Britton [2015] UKSC 36 at [17], where Lord Neuberger PSC cautioned that ‘the reliance placed in some cases on commercial common sense and surrounding circumstances … should not be invoked to undervalue the importance of the language of the provision which is to be construed’; ZX Tan ‘Beyond the real and the paper deal: the quest for contextual coherence in contractual interpretation’ (2016) 79 Mod L Rev 623 and D McLauchlan ‘A better way of making sense of contracts?’ (2016) 132 L Q Rev 577. See further Lord Neuberger in Marley v Rawlings [2014] UKSC 2; [2015] AC 129 at [20], applying the same principles to a will. The emphasis on commercial context in considering the certainty of intention to create a trust was recently considered by the High Court of Australia in Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6 (especially per Keane J at [230]-[237]). See also a case on interpretation of trust deeds in a commercial context (albeit one which Lord Sumption in dissent at [55] described as being ‘of considerable financial importance to the parties but rais[ing] no questions of wider legal significance’): BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc [2016] UKSC 29.
11. See further Sir A Mason ‘The place of equity and equitable remedies in the contemporary common law world’ (1994) 110 L Q Rev 238 and Lord Millett ‘Equity's place in the law of commerce’ (1998) 114 L Q Rev 214.
12. Holdsworth, above n 2, pp 98-99.
13. Ibid, p 98.
14. Ibid, p 99.
15. Constitutional Reform Act, s 27(8).
16. Lord Walker's last judgment was in the Equity case of Pitt v Holt (known as Futter v HMRC; Pitt v HMRC) [2013] UKSC 26.
17. J Rozenberg ‘Judicial appointments: new boys at the Supreme Court’ The Guardian 27 February 2013.
18. ‘I had no practical experience of many subjects which were the everyday work of the [Chancery] division - such as company, trusts, insolvency, intellectual property and so on. It was also a very lively time for the development of the law in many of those areas. To me they were relatively uncharted territory. It was steep learning curve’: Lord Carnwath ‘People and principle in the developing law’, address at the Eighth Biennial Conference on the Law of Obligations: ‘Revolutions in Private Law’, Cambridge, 19 July 2016; available at https://www.supremecourt.uk/docs/speech-160719.pdf (accessed 14 April 2017).
19. Lord Collins sat in Scott v Southern Pacific Mortgages Ltd & Ors [2014] UKSC 52 (giving the lead judgment); FHR [2014] UKSC 45; Rubin & Anor v Eurofinance SA [2012] UKSC 46 (giving the lead judgment); and Re Lehman Brothers International (Europe) [2012] UKSC 6.
20. Neuberger, above n 5, para 10.
21. F Reynolds ‘Commercial law’ in L Blom-Cooper, B Dickson and G Drewry (eds) The Judicial House of Lords 1876-2009 (Oxford: Oxford University Press, 2009) p 704 (speaking of Lord Simonds).
22. See eg Lord Toulson's opening at [1], ‘140 years afterthe Judicature Act 1873, the stitching together of equity and the common law continues to cause problems at the seams’: AIB [2014] UKSC 58. Lord Mansfield was also a much-criticised proponent of fusion: Holdsworth, above n 2, p 173.
23. Supreme Court Act 1970 (NSW), s 64; Law Reform (Law and Equity) Act 1972.
24. See PW Young ‘Equity, contract and conscience’ in S Degeling and J Edelman (eds) Equity in Commercial Law (Sydney: Lawbook Co, 2005) p 489.
25. See eg JD Heydon ‘The Hon Roderick Pitt Meagher AO QC (1932-2011)’ NSW Bar News, Winter 2011; M Kirby ‘Equity's Australian isolationism’ (2008) 8 Qld U Technol L & Just J 444; W Gummow ‘Equity: too successful’ (2003) 77 Austral L J 30; K Mason ‘Fusion: fallacy, future or finished?’ and W Gummow ‘Conclusion’, both in Degeling and Edelman, above n 24.
26. See section 2 below.
27. See section 3 below.
28. A Mason ‘Equity's role in the twentieth century’ (1997-1998) 8 King's C L J 1 at 4.
29. HG Hanbury ‘The field of modern equity’ (1929) 45 L Q Rev 196 at 200. See further Holdsworth, above n 2, pp 160-175.
30. Hon Peter Young, the former Chief Judge in Equity in New South Wales, has contrasted ‘fusion’ with ‘fission’ in this context, in the sense of the development of principles by either adoption or innovation: ‘Equity, contract and conscience’ in Degeling and Edelman, above n 24, pp 510-512.
31. Lord Mansfield admired More's valiant attempts to persuade common law judges to grant relief: Wyllie v Wilkes (1780) 2 Douglas 519 at 523. Lord Mansfield may also have been the source for the line (via Harman J) that ‘Equity ought not to be presumed to be past the age of childbearing’: Sir R Evershed ‘Equity ought not to be presumed to be past the age of child-bearing’ (1953) 1 Sydney L Rev 1 at fn 1.
32. ‘Statement on Supreme Court appointments process’; available at https://www.supremecourt.uk/news/statement-on-supreme-court-appointments-process.html (accessed 28 September 2016). Lord Toulson retired on 22 September 2016 (but will continue to sit on an ad hoc basis): the other five Justices - Lord Neuberger, Lord Clarke, Lord Mance, Lord Hughes and Lord Sumption - will all retire in 2018. See further Lord Neuberger ‘The role of the Supreme Court seven years on - lessons learnt’, Bar Council Law Reform Lecture 2016, 21 November 2016, para 52; available at https://www.supremecourt.uk/docs/speech-161121.pdf (accessed 14 April 2017).
33. ‘Chief Executive's review of the process followed by Selection Commissions making recommendations for appointment to The Supreme Court’ (July 2015); available at https://www.supremecourt.uk/docs/review-of-selection-commission-process-july-2015.pdf (accessed 28 September 2016). Neuberger, above n 32, paras 52-58.
34. Concern about the need for Chancery specialism was noted by one of the Chief Executive's consultees: ibid, para 4. For his part, Lord Sumption has professed scepticism as to the value of specialisms: ‘I have always taken the view that legal specialisations are essentially bogus. At the bar, I liked to trespass on other people's cabbage patches. As a judge I do it most of the time.’ Lord Sumption ‘Family law at a distance’, At a Glance Conference 2016, Royal College of Surgeons, 8 June 2016, at 1; available at https://www.supremecourt.uk/docs/speech-160608.pdf) (accessed 14 April 2017). See J Lee ‘The judicial individuality of Lord Sumption’ (2017) 40(2) U NSW L J (forthcoming).
35. Target Holdings Ltd v Redferns [1996] AC 421 at 435.
36. Ibid.
37. Ibid, at 436.
38. Ibid.
39. Ibid, at 434-36.
40. Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch) at [1513].
41. If the unauthorised disbursement turns out to be profitable, the beneficiary may choose to adopt it. See Millett, above n 11, at 226.
42. For this reason, the trustee is liable to account for the entire misapplied sum, regardless of whether the trust estate would have sustained the same measure of loss even if the duty was duly performed.
43. Youyang [2003] HCA 15 at [49].
44. See eg J Edelman ‘Money awards ofthe cost of performance’ (2010)4JEq 122 at [127-128].
45. Justice Edelman (extrajudicially), ‘An English misturning with equitable compensation’ (UNSW Australia colloquium on equitable compensation and disgorgement of profit, 7-8 August 2015); available at http://www.fedcourt.gov.au/publications/judges-speeches/justice-edelman/edelman-j-201508 (accessed 7 June 2016).
46. See eg Millett, above n 11; S Elliott ‘Remoteness criteria in equity’ (2002) 65 Mod L Rev 588; S Elliott and C Mitchell ‘Remedies for dishonest assistance’ (2004) 67 Mod L Rev 16; J Edelman ‘Money awards of the cost of performance’ (2010) 4 J Eq 122; Glister, J ‘Equitable compensation’ in Glister, J and Ridge, P (eds) Fault Lines in Equity (Oxford: Hart Publishing, 2012) p 143 Google Scholar; C Mitchell ‘Equitable compensation for breach of fiduciary duty’ (2013) 66 Current Legal Probs 307.
47. Cf Rickett, C ‘Where are we going with equitable compensation?’ In Oakley, A (ed) Trends in Contemporary Trust Law (Oxford: Oxford University Press, 1996) p 29 Google Scholar; A Burrows ‘We do this at common law and that in equity’ (2002) 22 Oxford J Legal Stud 1 at 10-11.
48. AIB [2014] 3 WLR 1367 at [73] (Lord Toulson) and [136] (Lord Reed). See also PG Turner ‘The new fundamental norm of recovery for losses to express trusts’ (2015) 74 Camb L J 188.
49. AIB [2014] 3 WLR 1367 at [69] (Lord Toulson) and [138] (Lord Reed).
50. J Glister ‘Breach of trust and consequential loss’ (2014) 8 J Eq 235 at 238, 258.
51. AIB [2014] 3 WLR 1367 at [69].
52. With both of whom Lord Neuberger, Baroness Hale and Lord Wilson agreed.
53. AIB [2014] 3 WLR 1367 at [71] (Lord Toulson) and [137] (Lord Reed).
54. Ibid, at [108].
55. Ibid, at [71].
56. Ibid, at [74]. This part of Lord Toulson's reasoning contradicts his earlier insistence that the same general principles would apply in respect of both commercial and traditional trusts.
57. See Millett, above n 11, at 227 and (as Lord Millett NPJ) in Libertarian Investments Ltd v Hall [2014] 1 HKC 369.
58. [2015] EWHC 1946 (QB) (see Appendix 3 (Supplemental Judgment) at [7]).
59. [2016] EWHC 789 (Ch) at [42]. The case concerned breach of trust by the vendor's solicitors and the purchaser's solicitors in paying purchase money away to the vendor who fraudulently claimed to be the true registered proprietor of the property. The case did not concern the assessment of equitable compensation for breach of trust specifically. A main issue before the court was discretionary relief from liability under s 61 of the Trustees Act 1925. Counsel for the vendor's solicitor relied on AIB - specifically, Lord Toulson's point that the solicitor-trustee's liability in equity ought not exceed his liability at law - in his argument that a more favourable standard of ‘reasonableness’ should be applied to his client.
60. Purrunsing [2016] EWHC 789 (Ch) at [42].
61. This raises the issue of incidental rules for concurrent liability, although Lord Toulson did not explicitly address liability for equitable compensation in that particular context.
62. Another example is the reinterpretation of the content of ‘irreducible core’ of a trustee's obligations in Citibank NA v MBIA Assurance SA [2007] 1 All ER (Comm) 475, a dispute arising in the debt securitisation context. See A Trukhtanov ‘The irreducible core of trust obligations’ (2007) 123 L Q Rev 342; M Yip ‘The commercial context in trust law’ [2016] Conv 347 at 356-359.
63. The compensatory principle in contract law has been recently affirmed on numerous occasions: Golden Strait Corporation v Nippon Kubishika Kaisha (The Golden Victory) [2007] UKHL 12; [2007] 2 AC 535; Flame SA v Glory Wealth Shipping Pte Ltd (The Glory Wealth) EWHC 3153 (Comm); Bunge SA v Nidera BV [2015] UKSC 43; [2015] 3 All ER 1082; Commodities Suisse SA v MT Maritime Management BV (The MTM Hong Kong) [2015] EWHC 2505 (Comm).
64. AIB [2014] 3 WLR 1367 at [138].
65. Fischer v Nemeske Pty Ltd [2016] HCA 11 at [111] (Gaegler J).
66. Edelman, above n 45. See also RS French CJ ‘Equitable compensation’, Hong Kong, 23 September 2015 and McIntosh v Fisk [2015] NZCA 74 at [20] (French and Harrison JJ).
67. AIB [2014] 3 WLR 1367 at [61].
68. FHR [2014] 3 WLR 535 at [1]. When the same case was in the Court of Appeal, Pill LJ remarked that ‘[c]onsideration of the views of commentators and practitioners generally on the subject of constructive trusts in the law of England and Wales reveals passions of a force uncommon in the legal world’: FHR European Ventures LLP v Mankarious [2013] EWCA Civ 17 at [61].
69. FHR [2014] 3 WLR 535 at [33]. See eg Lord Millett ‘Bribes and secret commissions’ [1993] RLR 7; Lord Millett ‘Bribes and secret commissions again’ (2012) 71 Camb L J 583. See also an analysis based on attribution, divorced from wrongdoing by Lionel Smith: L Smith ‘Constructive trusts and the no-profit rule’ [2013] Camb L J 260; L Smith ‘Deterrence, prophylaxis and punishment in fiduciary obligation’ (2013) 7 J Eq 87.
70. FHR [2014] 3 WLR 535 at [31]. See eg R Goode ‘Proprietary restitutionary claims’ in WR Cornish et al. (eds) Restitution Past, Present and Future: Essays in Honour of Gareth Jones (Oxford: Hart Publishing, 1998) ch 5; S Worthington ‘Fiduciary duties and proprietary remedies: addressing the failure of equitable formulae’ (2013) 72 Camb L J 720.
71. [2011] 3 WLR 1153 at [88]. Essentially, a constructive trust would only arise over an asset received by a fiduciary in breach of fiduciary duty where the asset is or has been the beneficial property of the beneficiary (category 1) or it was acquired by taking an advantage of an opportunity or a right that properly belonged the beneficiary (category 2). The decision received mixed reviews: see eg D Hayton ‘Proprietary liability for secret profits’ (2011) 127 L Q Rev 487; R Goode ‘Proprietary liability for secret profits: a reply’ (2011) 127 L Q Rev 493; G Virgo ‘Profits obtained in breach of fiduciary duty: personal and proprietary claim?’ (2011) 70 Camb L J 502.
72. [2011] 3 WLR 1153 (Sinclair Investments).
73. Lord Neuberger's reasoning in Sinclair Investments was later applied by Newey J in Cadogan Petroleum plc v Tolley [2011] EWHC 2286, a case concerning secret commissions.
74. (1859) 27 Beav 273. See a detailed analysis of the House of Lords' decision: P Watts ‘Tyrrell v Bank of London - an inside look at an inside job’ (2013) 129 L Q Rev 527.
75. (1880) 45 Ex D 319.
76. (1890) 45 Ch D 1 (Lister & Stubbs).
77. FHR [2014] 3 WLR 535 at [47] and [50].
78. Ibid, at [50].
79. [1994] 1 AC 324 at [73]-[84]. Reid has been affirmed and followed by the English High Court in Daraydan Holdings Ltd v Solland International Ltd [2005] 4 All ER 73; Ultraframe (UK) Ltd v Fielding [2006] FSR 17.
80. Sinclair Investments [2011] 3 WLR 1153 at [76]-[84].
81. Lord Neuberger ‘The remedial constructive trust - fact or fiction’, at the Banking Services and Finance Law Association Conference, Queenstown, New Zealand, 10 August 2014, para 2; available at https://www.supremecourt.uk/docs/speech-140810.pdf (accessed 28 September 2016).
82. See also D Whayman ‘Proprietary remedy confirmed for bribes and secret commissions’ [2014] Conv518at521.
83. FHR [2014] 3 WLR 535 at [32] and [46].
84. Ibid, at [32].
85. Ibid, at [35].
86. Ibid, at [41].
87. Ibid, at [42].
88. Ibid, at [45].
89. Although conventional reference differentiates between a bribe and a secret commission, the substantive distinctions are not immediately clear.
90. Indeed, the policy basis for the standalone offence of ‘bribery of a foreign public official’ under s 6 of the Bribery Act 2010 is to ‘prohibit the influencing of decision making in the context of publicly funded business opportunities by the inducement of personal enrichment of foreign public officials or to others at the official's request, assent or acquiescence’. See the Bribery Act 2010 - Guidance at p 11; available at https://wwwjustice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf (accessed 28 September 2016).
91. FHR [2014] 3 WLR 535 at [35].
92. Neuberger, above n 81. It should also be noted that Lord Neuberger, in the same speech, said that where the domestic context is concerned, some (though not himself) ‘may think certainty [of legal principles] is less important’. Lord Sumption has underlined English law's opposition to the remedial constructive trust in Bailey v Angove's PTY Ltd [2016] 1 WLR 3179 at [27]. The case is considered below.
93. FHR [2014] 3 WLR 535 at [42].
94. The legislation entered into force after the key events of the FHR dispute had taken place. There was therefore no question of criminal liability on the part of the commercial parties in FHR under the Act.
95. Cf K Barnett ‘Distributive justice and proprietary remedies over bribes’ (2015) 35 Legal Stud 302 at 305-306.
96. FHR [2014] 3 WLR 535 at [42].
97. Supported by Leeming JA in Hasler v Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd [2014] NSWCA 266 at [71]: ‘There is frequently much to be learnt from the experience of other jurisdictions whose legal systems share a common ancestor’. Cf French CJ, extrajudicially: ‘There is a degree of commonality in our jurisdictions but some important issues are ongoing including the proper scope of equitable compensation and how it may differ according to the nature of the equitable wrong’ (RS French, above n 66, at 28).
98. Neuberger, above n 5.
99. See the success of the English Commercial Court in attracting international litigation: The Honourable Mrs Justice Carr, ‘Closing address for British Turkish Lawyers Association seminar - the Inner Temple’ (13 September 2013), available at https://wwwjudiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/justice-carr-btla-190913.pdf (accessed 28 September 2016); J Croft ‘Three-quarters of litigants in UK Commercial Court are foreign’ The Financial Times 29 May 2014. See further the introduction of the Financial List, a specialist court to deal with financial claims: GMcMeel ‘A new financial court for London’ [2016] Lloyd's Mar & ComL Q 1.
100. Whether pre-dispute by way of a choice of court agreement or post-dispute.
101. Bailey v Angove's PTYLtd [2016] 1 WLR 3179 at [27].
102. See eg Muschinski v Dodds (1985) 160 CLR 583; John Alexander's Club Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1.
103. See eg LAC Minerals Ltd v International Corona Resources Ltd [1989] 61 DLR 14.
104. Regal Castings Limited v Lightbody [2009] NZLR 433; John Hanita Pak v AG of New Zealand [2014] NZSC 18 at [163] (Elias CJ) and [297]-[312] (Young J). However, the availability of a remedial constructive trust under New Zealand law has yet to be conclusively determined by the New Zealand Court of Appeal: see Boat Harbour Holdings Ltd v Mowat [2012] NZCA 305 at [51]; Strategic Finance Ltd (in receivership and in liquidation) v Bridgman [2013] NZCA 357 at [122]-[126].
105. See eg Wee Chiaw Sek Anna v Ng Li-Ann Genevieve [2013] 3 SLR 801.
106. Neuberger, above n 81.
107. FHR [2014] 3 WLR 535 at [43].
108. Ibid, at [35] (see also [33]). See also trenchant criticisms by Campbell: JC Campbell ‘When and why a bribe is held on a constructive trust: the method of reasoning towards an equitable remedy’ (2015) 39 Austral Bar Rev 320 at 321-325.
109. Cf Lord Sumption in Jetivia SA & Anor v Bilta (UK) Ltd at [104]: ‘I agree with Lord Toulson and Lord Hodge that Occam's Razor is a valuable analytical tool, but only if it is correctly understood. Entia non sunt multiplicanda praeter necessitatem. Do not gratuitously multiply your postulates.’
110. FHR [2014] 3 WLR 535 at [35].
111. G Virgo The Principles of Equity & Trusts (Oxford: Oxford University Press, 2nd edn, 2016) pp 305, 327-328. See further section 4 below.
112. Paragon Finance plc v DB Thakerar and Co [1999] 1 All ER 400 at 408 (Millett LJ).
113. See Patel v Mirza [2016] 3 WLR 399 at [170]. Lord Neuberger holds the view that correct legal analysis is ‘not the centrally important issue', if the question confronting the court is based on policy.
114. Account of profits continues to exist in English law: see Novoship (UK) Ltd v Mikhaylyuk [2014] WLR (D) 297; Global Energy Horizons Corporation v Gray [2015] EWHC 2232 (Ch).
115. Whayman, above n 82, at 524.
116. A corollary consequence is that there is no longer the concern that the account is unable to ‘mop up’ all the unauthorised benefits that a fiduciary has derived from the breach of duty.
117. Although some may take the view that the effect of FHR is to accord equal remedial treatment to all breaches of fiduciary duty (see Whayman, above n 82, at 523-524), it should not be missed that where a fiduciary has acted in good faith, he may be awarded equitable allowance (see Boardman v Phipps [1964] 1 WLR 993). As such, it is certainly arguable that the real effect of FHR, mapped on to existing principles, is to craft remedies based on severity of wrongdoing.
118. Sinclair Investments [2011] 3 WLR 1153 at [80]. Lord Neuberger said that there is a ‘fundamental distinction between (i) a fiduciary enriching himself by depriving a claimant of asset and (ii) a fiduciary enriching himself by doing a wrong to the claimant’.
119. S Worthington ‘The disappearing divide between property and obligation: the impact of aligning legal analysis and commercial expectations’ (2007) 42 Tex Int'l L J 918.
120. [2016] 1WLR 3179. See P Watts ‘The insolvency of agents’ (2017) 133 L Q Rev 11 and H Wong ‘Proprietary restitution and constructive trusts in the Supreme Court’ [2016] Conv 480.
121. With whom Lords Neuberger, Clarke, Carnwath and Hodge agreed.
122. [1983] 2 Lloyd's Rep 658, followed in In re Japan Leasing Europe Plc [1999] BPIR 911.
123. See discussion above at text to n 67.
124. Bailey v Angove's PTY Ltd [2016] 1 WLR 3179 at [26].
125. R Goode ‘Ownership and obligation in commercial transactions’ (1987) 103 L Q Rev 433 at 444.
126. Bailey v Angove's PTY Ltd [2016] 1 WLR 3179 at [30].
127. [1996] AC 669 at [704]-[716].
128. Bailey v Angove's PTY Ltd [2016] 1 WLR 3179 at [32].
129. Eg the analysis of Mann J in In re Farepak Food and Gifts Ltd [2008] BCC 22 at [39]-[40].
130. Bailey v Angove's PTY Ltd [2016] 1 WLR 3179 at [32].
131. Ibid, at [18]: ‘it is strictly speaking unnecessary to deal with the point’.
132. ‘Strangers to the trust’ is of course shorthand, as liability may extend to conduct relating to breaches of fiduciary (and other equitable) duties: Novoship (UK) Ltd v Mikhaylyuk [2015] 2 WLR 526 at [92]; Westpac Banking Corp v Bell Group Ltd (No.3) (2012) 44 WAR 1 at [2714]-[2733].
133. [2014] AC 1189. For fuller and more specific criticism, see J Lee ‘Constructing and Limiting Liability in Equity’ (2015) 131 L Q Rev 39.
134. Paragon Finance Plc v DB Thakerar & Co [1999] 1 All ER 400, per Millett LJ at 408-409, endorsed by Lord Sumption in Williams at [9]—[11]. Williams was endorsed and applied by Bell AJ in Atkinson v Berry [2014] NZHC 2318 at [27] (considering the then applicable s 21 of the NZ Limitation Act 1950). Cf the position in New South Wales: Sze Tu v Lowe [2014] NSWCA 462 at [326]-[339], especially at [336]-[337].
135. [2009] HKCFA 16.
136. Williams at [154].
137. [2013] 1 SLR 173.
138. As the Court dismissed the appeal on the challenge to the facts decided (and conceded below): [2013] 1 SLR 173 at [34]-[35].
139. [2013] 1 SLR 173 at [46].
140. In Sea Shepherd UK v Fish & Fish Ltd [2015] UKSC 10, Lord Toulson, speaking of the liability of a joint tortfeasor, noted (at [39]) that ‘In reality, the limitations which the courts have placed upon the scope of liability as a joint tortfeasor are founded on a pragmatic concern to limit the propensity of the law of tort to interfere with a person's right to do things which are in themselves entirely lawful.’ For further detail, see P Davies Accessory Liability (Oxford: Hart Publishing, 2015) chs 4, 6.
141. Since Criterion Properties Plc v. Stratford UK Properties LLC [2004] UKHL 28. There had been some Privy Council decisions, such as Barlow Clowes International Ltd & Anor v Eurotrust International Ltd (Isle of Man) [2005] UKPC 37 and Arthur v Attorney General of the Turks & Caicos Islands [2012] UKPC 30.
142. J Lee ‘Fidelity in interpretation: Lord Hoffmann and The Adventure of the Empty House’ (2008) 28 Legal Stud 1.
143. Starglade Properties Ltd v Nash [2010] EWCA Civ 1314, [25] (Sir Andrew Morritt C) and Central Bank of Ecuador & Ors v Conticorp SA & Ors (Bahamas) [2015] UKPC 11 at [9] (Lord Mance).
144. [1995] 2 AC 378.
145. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (Farah) [2007] HCA 22; 230 CLR 89, on a strict interpretation of Lord Selborne LC in Barnes v Addy (1874) LR 9 Ch App 244 at 251-252.
146. [2014] NSWCA 266.
147. Westpac Banking Corporation v Bell Group Ltd (No 3) [2012] WASCA 157; 44 WAR 1.
148. Hasler [2014] NSWCA 266 at [110] (Leeming JA).
149. Ibid, at [125] (Leeming JA).
150. [2015] 2 WLR 526.
151. Ibid, at [115].
152. Ibid, at [119].
153. In Central Bank of Ecuador and others v Conticorp SA [2015] UKPC 11 (judgment on interest and costs) at [9], speaking in the context of the discretion to award compound interest.
154. [2001] Ch 437.
155. Ibid, at 455.
156. Ibid.
157. Ibid, at 457.
158. [2010] HKCU 2362.
159. Thanakharn Kasikorn Thai Chamkat v Akai Holdings [2010] HKCU 2362 at [51].
160. Ibid, at [52].
161. Ibid, at [70].
162. Although it may be noted that Lord Neuberger left open the point as to whether unconscionability as stated in Akindele is the correct approach in knowing receipt: Ibid, at [128].
163. Ibid, at [89].
164. Ibid, at [135].
165. Ibid.
166. [2010] 2 SLR 589.
167. Ibid, at [43]. VK Rajah JA, delivering the judgment of the Court of Appeal, merely stressed that the knowledge requirement for both causes of action, though similar, remain ‘conceptually distinct’. There is a strong sense that the Court was careful not to label commercial actors as ‘dishonest’, given the reputational repercussions. A similar, though separate concern was found in Lord Hutton's now disapproved combined test for dishonesty in the context of the solicitor in Twinsectra Limited v Yardley [2002] UKHL 12 at [35].
168. [2010] 2 SLR 589 at [52] (emphasis added).
169. [2010] 2 SLR 589 at [46].
170. The court noted (at [46]) the then absence of obligations in respect of money laundering regulations in Singapore.
171. [2010] 2 SLR 589 at [46].
172. Ibid, at [50].
173. As to which, see Virgo, G ‘Whose conscience? Unconscionability in the common law of obligations’ in Robertson, A and Tilbury, M (eds) Divergences in Private Law (Oxford: Hart Publishing, 2016) p 293 Google Scholar.
174. Lord Walker ‘Dishonesty and unconscionable conduct in commercial life - some reflections on accessory liability and knowing receipt’ (2005) 27 Sydney L Rev 187.
175. Mitchell, C and Watterson, S ‘Remedies for knowing receipt’ in Mitchell, C (ed) Constructive and Resulting Trusts (Oxford: Hart Publishing, 2010) p 129 Google Scholar. This was supported by Sir Terence Etherton in the Privy Council decision of Arthur v Attorney General of the Turks & Caicos Islands [2012] UKPC30at [37]. Sir Terence has served as Chancellor and was recently appointed to succeed Lord Dyson as Master of the Rolls (returning a Chancery lawyer to the role). Cf D Whayman ‘Remodelling knowing receipt as a gains-based wrong’ [2016] J Bus L 565.
176. See Glister, J and Lee, J Hanbury & Martin: Modern Equity (London: Sweet & Maxwell, 20th edn, London, 2015) para 25-004Google Scholar.
177. Lee, above n 133, at 42-3.
178. Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 at 704G-705B. Cf also Reynolds, above n 21, pp 704-705.
179. [2016] UKSC 47 at [1] (emphasis added).
180. T More Utopia, tr G Burnet (London, 1808) p 56.
181. Of cases mentioned here, see eg Lord Hoffmann NPJ in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] HKCFA 16, Lord Neuberger NPJ in Thanakharn Kasikorn Thai Chamkat (Mahachon) (aka Kasikornbank Public Co Ltd) v Akai Holdings Ltd (in liquidation) [2012] HKCU 2362, and Lord Millett NPJ in Libertarian Investments Ltd v Hall [2014] 1 HKC 369.
182. See further the Honourable the Chief Justice Sundaresh Menon, Keynote Address at Singapore Academy of Law and Chancery Bar Conference 2013 ‘Finance, property and business litigation in a changing world’, speech, Singapore, 25 April 2013.
183. See M Yip ‘The resolution of disputes before the Singapore International Commercial Court’ (2016) 65 Int'l Comp L Q 439.
184. See eg CPIT Investments Ltd v Qilin World Capital Ltd [2016] SGHC(I), in which Vivian Ramsay International Judge delivered a decision on Singapore civil procedure, in relation to applications made in respect of a case that has been transferred to the Singapore International Commercial Court.
185. Lord Sumption has noted that ‘there is greater flexibility [in] the legal profession. The division between the chancery bar and the common law bar, which was once absolute, has become almost imperceptible’: Sumption, above n 34, at 6.