CPLC Work in Progress Seminar: 'Justifying Fiduciary Maximalism'

Speaker: Mr Julius Grower, University of Cambridge

In the past I have argued that several supposedly sui generis constructive trusts (the Pallant v Morgan equity, the trust in Neste Oy) can only be explained as responding to an agent’s disloyalty. The first part of my paper concerns another of them: ‘the trust in Rochefoucauld v Boustead’.

This is not to deny that Rochefoucauld itself was decided on the basis that it involved an express trust, however. Any fair reading of the report shows just that. Instead, it is to argue that, all other things being equal, the court would have been bound to reach the same conclusion as a matter of fiduciary law. More widely, I do claim that, whenever the supposed ‘doctrine in Rochefoucauld’ applies (e.g. Bannister v Bannister), it is merely because the case has 1) a certain peculiar fact pattern and 2) involves disloyalty.

The second part of my paper argues that we should not be afraid to apply fiduciary law in all the circumstances in which we can conceivably do so. Counter arguments about the rights of an insolvent fiduciary’s creditors, and arguments about the possibility of using some sort of discretion to achieve more perfect justice across the cases, should be rejected.

This seminar is open to all LLM, MCL and PhD students, Faculty members and Faculty visitors.