Nicholas Collins, The no-conflict rule: the acceptance of traditional equitable values?, Trusts & Trustees, Volume 14, Issue 4, May 2008, Pages 213224, https://doi.org/10.1093/tandt/ttn009. T he respondent, JP, was a son of the testator and a beneficiary under the . Boardman v Phipps [1967] 2 AC 46. by Will Chen; 2.I or your money back Check out our premium contract notes! It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. Viscount Dilhorne and Lord Upjohn (DISSENTING): A COI only arises and renders a fiduciary liable to account for profits made where a reasonable man, looking at all the relevant circumstances, would conclude that there was a real, sensible possibility of conflict of interest, which was not the case here. endobj If you are a member of an institution with an active account, you may be able to access content in one of the following ways: Typically, access is provided across an institutional network to a range of IP addresses. Flower; Graeme Henderson). Lords Cohen, Guest and Hodson held that there was a possibility of a conflict of interest because the beneficiaries might have come to Boardman for advice as to the purchases of the shares. The Cambridge Law Journal publishes articles on all aspects of law. This item is part of a JSTOR Collection. 2011 Editorial Committee of the Cambridge Law Journal 399, 400 (PC). Oxbridge Notes in-house law team. Therefore the agent must account to the trust for any profit made out of the position. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.". 25% off till end of Feb! The case for tracing forward not backward through an overdraft. %PDF-1.5 7 Boardman v. Phipps [1967] 2 A.C. 46, 124 per Lord Upjohn. He (and a beneficiary) purchased shares in a company in which the trust already had a substantial holding. "It is perhaps stated most highly against trustees or directors in the celebrated speech of Lord Cranworth L.C. Lord Cohen said the information is not truly property and it does not necessarily follow that, because an agent acquired information and opportunity while acting in a fiduciary capacity, he is accountable. The only defence available to a person in such a fiduciary position is that he made the profits with the knowledge and assent of the trustees. Boardman and Tom Phipps had breached their duties to avoid a conflict of interest. in. He and a beneficiary, Tom Phipps, went to a shareholders' general meeting of the company. If the defendant has done valuable work in making the profit, then the court in its discretion may allow him a recompense. His liability to account depends on the facts. Boardman v Phipps [1966] UKHL 2 is a landmark English trusts law case concerning the duty of loyalty and the duty to avoid conflicts of interest. Final, Pharmaceutical Calculations practice exam 1 worked answers, Acoples-storz - info de acoples storz usados en la industria agropecuaria. As the judge said: "it would be inequitable now for the beneficiaries to step in and take the profit without paying for the skill and labour which has produced it.". The majority disagreed about the nature and relevance of information used by Boardman and Phipps. HL (majority 3-2) held that S and B would hold their acquired shares as constructive trustees for the beneficiaries. F5aE}*?fxl1oA+;{ S>"~qOf~AcW|g[ VFaxb'o Tns34}#rPDB It concludes that the conduct-based approach in Boardman v Phipps should be rejected, and that the unjust enrichment-based approach provided by Warman International Ltd v Dwyer should be fiduciary he was accountable to the beneficiaries for any profit he had made. If your institution is not listed or you cannot sign in to your institutions website, please contact your librarian or administrator. I think there should be a generous remuneration allowed to the agents. Boardman v Phipps is a leading authority on the no-conflict rule. O(Grx+Q_[%Dm%|(Dy m%Cn(Dy(o%~(Jg(Q[tJD|(R(GIAK(xRph1%Z'-Y!bO-FDY b<9hHJO-F?!b<98HO-F!b-f b. Another beneficiary (P) claimed conflict of interest and demanded her share of the profit, because of S fiduciary role. If you see Sign in through society site in the sign in pane within a journal: If you do not have a society account or have forgotten your username or password, please contact your society. Read more about this topic: Boardman V Phipps, Judgment, A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it.Walter Bagehot (18261877), The welcome house of him my dearest guest.Where ever, ever stay, and go not thence,Till natures sad decree shall call thee hence;Flesh of thy flesh, bone of thy bone,I here, thou there, yet both but one.Anne Bradstreet (c. 16121672), You see how this House of Commons has begun to verify all the ill prophecies that were made of itlow, vulgar, meddling with everything, assuming universal competency, and flattering every base passionand sneering at everything noble refined and truly national. 2.I or your money backCheck out our premium contract notes! Issues Did Boardman and Tom Phipps breach their duty to avoid a conflict of interest, despite the fact that the company made a profit and . This article explores how the dissenting judgment of Lord Upjohn in Boardman v Phipps has been preferred by the lower courts and why the courts have adopted such a position. His Lordship distinguished Regal (Hastings) v Gulliver by restricting Regal Hastings to circumstances concerned with property of which the principals were contemplating a purchase. stream Lord Upjohn was in dissent in Boardman v. Phipps, but his dissent was "on the facts but not on the law": Queensland Mines Ltd. v. Hudson (1978) 52 A.L.J.R. They suggested to a trustee (Mr Fox) that it would be desirable to acquire a majority shareholding, but Fox said it was completely out of the question for the trustees to do so. Current issues of the journal are available at http://www.journals.cambridge.org/clj. Mr Tom Boardman was the solicitor of a family trust. In April 1997, Mrs Newman and her husband granted a lease of 1 Vicarage . Penn v Lord Baltimore (1750) Paul Mitchell . Boardman v Phipps (1967) Michael Bryan; 21. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.". 'Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case. Ought Boardman and Tom Phipps to be allowed remuneration for their work and skill in these negotiations? This species of action is an action for restitution such as Lord Wright described in the Fibrosa case. Society member access to a journal is achieved in one of the following ways: Many societies offer single sign-on between the society website and Oxford Academic. Such persons will, however, be entitled to payment on a liberal scale for their work and skill. The House of Lords maintained the strict rule that historically equity has imposed on a fiduciary. Boardman v Phipps is a leading authority on the no-conflict rule. The company made a distribution of capital without reducing the values of the shares. If the agent has been guilty of any dishonesty or bad faith, or surreptitious dealing, he might not be allowed any remuneration or reward. The majority agreed unanimously that liability to account for the profits made by virtue of a fiduciary relationship is strict and does not depend on fraud or absence of bona fides, and so Phipps and Boardman would have to account for their profits. . 3 0 obj Material Facts Boardman was the solicitor for a family trust. Citation and Court [1967] 2 AC 46. His Therefore S and B invested themselves and the company did very well, improving the value of the shares held by themselves individually and by the trust. However they were generously remunerated for their services to the trust. privacy policy. my lords. Did Boardman and Tom Phipps breach their duty to avoid a conflict of interest, despite the fact that the company made a profit and they had obtained (some) consent from the beneficiaries? Boardman and Phipps would have to account for their profits, despite the fact they had best intentions and made the Lexter & Harris a profit. Boardman and Tom Phipps, one of the beneficiaries under the trust, were unhappy with the state of the . Do not use an Oxford Academic personal account. Register, Oxford University Press is a department of the University of Oxford. To purchase short-term access, please sign in to your personal account above. % Chase Manhattan Bank v Israel-British Bank Ltd, Industrial Development Consultants v Cooley, https://en.wikipedia.org/w/index.php?title=Boardman_v_Phipps&oldid=1123060721, Creative Commons Attribution-ShareAlike License 3.0, [1965] Ch 992, [1965] 2 WLR 839 and [1964] 1 WLR 993, Viscount Dilhorne, Lord Cohen, Lord Hodson, Lord Guest and Lord Upjohn, This page was last edited on 21 November 2022, at 15:30. In this Equity Short, John Picton analyses Boardman v Phipps [1966] UKHL 2. Show all summaries ( 46 ) It concludes that the conduct-based approach in Boardman v Phipps should be rejected, and that the unjust enrichment-based approach provided by Warman International Ltd v Dwyer should be <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 17 0 R 22 0 R 23 0 R 25 0 R 35 0 R 36 0 R 40 0 R 42 0 R] /MediaBox[ 0 0 594.96 842.04] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 2010-2023 Oxbridge Notes. He and a beneficiary, Tom Phipps, went to a shareholders' general meeting of the company. Boardman appealed against a finding that he was a constructive trustee for, or agent did not necessarily render him accountable for profit from its use, yet in, the present case, as both the information which satisfied B and P, purchase of the shares would be a good investment and the opportunity to bid, came as a result of B acting on behalf of the trustees B and P, trustees of five eighteenths of the shares in the company for the respondent and, were liable to account to him for the profit thereon accordingly, Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Public law (Mark Elliot and Robert Thomas), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Introductory Econometrics for Finance (Chris Brooks), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Electric Machinery Fundamentals (Chapman Stephen J. The other two members of the majority, Lord Hodson and Lord Guest, opined that information can constitute property in appropriate circumstances and in the current case, the confidential information acquired can be properly regarded as property of the trust. F5aE}*?fxl1oA+;{ S>"~qOf~AcW|g[ VFaxb'o Tns34}#rPDB The trustees were prevented from purchasing any further shares as they were not authorised investments under the terms of . The House of Lords maintained the strict rule that historically equity has imposed on a fiduciary. principal shareholder group, Boardman obtained information about the factories of Lester & Harris in Coventry and Nuneaton and its property in Australia. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/Annots[ 17 0 R 22 0 R 23 0 R 25 0 R 35 0 R 36 0 R 40 0 R 42 0 R] /MediaBox[ 0 0 594.96 842.04] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Maguire v Makaronis 1997 infers that anyone under a fiduciary obligation must foreshow righteousness of their transactions. BOARDMAN v PHIPPS. our website you agree to our privacy policy and terms. When on the institution site, please use the credentials provided by your institution. criticism, see L.S. Lord Cohen (on a point with which Hodson and Cohen agreed): S had placed himself in a position of potential CoI, for example if the trustees asked his advice on the merits of buying more shares in the company. It depends on the circumstances. But then John Phipps, another beneficiary, sued for their profits, alleging a conflict of interest. For faster navigation, this Iframe is preloading the Wikiwand page for Boardman v Phipps . The House of Lords maintained the strict rule that historically equity has imposed on a fiduciary. But they did not obtain the fully informed consent of all the beneficiaries. Key Points. For terms and use, please refer to our Terms and Conditions able to bring it back to profit, and the trust fund benefited. Q6 - You now need to carry out research about the different universities/colleges you are interested in applying to by finding the answers to the areas you have outlined in your responses to questions 3 and 5 above. T he appellant B was a solicitor who acted as an advisor to the trustees. Oxbridge Notes uses cookies for login, tax evidence, digital piracy prevention, business intelligence, and advertising purposes, as explained in our On this, Lord Denning MR said (at 1021). Boardman, the Pettitt v Pettitt (1970) and Gissing v Gissing (1971) John Mee; 22. All rights reserved. Special emphasis is placed on contemporary developments, but the journal's range includes jurisprudence and legal history. Lord Upjohn dissented, and held that Phipps and Boardman should not be liable because a reasonable man would not have thought there was any real sensible possibility of a conflict of interest. xksgD2u$N+xH)%"dU &c~m_WMnny|t80^olIv"+E] mv}f"gv UY Fe_go_eu6[xGLBdUS-?b\4?s=}GO0upAQ![*`E"~ They were therefore liable for the profits earned. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The gist of it is that the defendant has unjustly enriched himself, and it is against conscience that he should be allowed to keep the money. House of Lords. Mr Boardman (the trust's solicitor) investigated the affairs of the company, initially on behalf of the trust, and gained useful information. ", The phrase "possibly may conflict" requires consideration. Each issue also contains an extensive section of book reviews. Boardman was concerned about the accounts of the company, and thought that to protect the trust a majority shareholding is required. Grey v Grey (1677) Jamie Glister; 4. This article explores how the dissenting judgment of Lord Upjohn in Boardman v Phipps has been preferred by the lower courts and why the courts have adopted such a position. John Phipps and another beneficiary, sued for their profits, alleging a conflict of interest by Boardman and Phipps. 31334. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. Constructive trusts, unjust enrichment, tracing 2010 Cases, Written by Oxford & Cambridge prize-winning graduates, Includes copious academic commentary in summary form, Concise structure relating cases and statutes into an easy-to-remember whole. Tom Boardman was a solicitor for a family trust. The beneficiary principle in the 21st century, Subscription prices and ordering for this journal, Purchasing options for books and journals across Oxford Academic, Receive exclusive offers and updates from Oxford Academic. The solicitor to a family trust (S) and one Beneficiary (B)-there were several-went to the board meeting of a company in which the trust owned shares. The direct tyranny will come on by and by, after it shall have gratified the multitude with the spoil and ruin of the old institutions of the land.Samuel Taylor Coleridge (17721834), From scenes like these old Scotias grandeur springs,That makes her loved at home, revered abroad;Princes and lords are but the breath of kings,An honest mans the noblest work of God!Robert Burns (17591796), "It is perhaps stated most highly against trustees or directors in the celebrated speech of Lord Cranworth L.C. He also obtained detailed trading accounts of the English and Australian arms of the business. P0Y|',Em#tvx(7&B%@m*k The trust property included a substantial shareholding in a private company. Boardman and another trustee, Fox, therefore . *Lecturer in Law at University of East London, Email: Search for other works by this author on: The Author (2008). Paragon Finance plc v DB Thakerar & Co (a . Choose this option to get remote access when outside your institution. endobj [1] The trust assets include a 27% holding in a company (a textile company with factories in Coventry, Nuneaton and in Australia through a subsidiary). His lordship, with respect . But when, as in this case, the agents acted openly and above board, but mistakenly, then it would be only just that they should be allowed remuneration. He said unequivocally that knowledge learnt by a trustee in the course of his duties is not property of the trust and may be used for his own benefit unless it is confidential information which is given to him (i) in circumstances which, regardless of his position as a trustee, would make it a breach of confidence to communicate it to anyone or (ii) in a fiduciary capacity. The trust benefited by this distribution 47,000, while Boardman and Phipps made 75,000. By using John Phipps and another beneficiary, sued for their profits, alleging a conflict of interest by Boardman and Phipps. S;70[`J)LQ,ecX_LK,*q3>~ B=eA* Administrative Law. Boardman and Phipps did not obtain the fully informed consent of all the beneficiaries. Part II describes the rationales for adopting each of the approaches to awarding allowances to dishonest fiduciaries. Boardman had concerns about the state of Lexter & Harris' accounts and thought that, in order to protect the trust, a majority shareholding was required. 3 0 obj Boardman v Phipps [1967] Where an individual is in the position of agent for trustees, any knowledge acquired in such a position is trust property. Land law - Introduction to land law with description of its history, Introduction to Sports Massage and Soft Tissue Practices, Legal and Professional Aspects of Optometry (BIOL30231), Access to Health Professionals (4000773X), Business Data Analysis (BSS002-6/Ltn/SEM1), Introductory Chemistry (0FHH0023-0901-2018), Introduction toLegal Theory andJurisprudence, Introduction to English Language (EN1023), Cell Membranes - Lecture notes, lectures 1 - 24. WI[y*UBNJ5U,`5B1F :IK6dtdj::yj Boardman v Phipps (1967) was an example of the application of strict liability. will. Is it a conflict? Lecture notes, lectures 1-10 - Financial Maths for Actuarial Science, Lecture Notes - Psychology: Counseling Psychology Notes (Lecture 1), The effect of s78 Police and Criminal Evidence Act 1984 Essay, Critical Reflection on my Work Experience, 2019 MCQ 1 answers - Online Multiple Choice Questions, Caso Walmart vs Kmart - RESUMEN DEL TEMA DE LOGISTICA DE OPERACIONES - DSM-5, Syllabus in Social Science and Philosophy, ACCA FINANCIAL MANAGEMENT Pocket Notes 2021 22, Mischief Rule, Examples, Advantages, Disadvantages and rectification, Human Muscular Skeletal Systems. The trust benefited by this distribution 47,000, while Boardman and Phipps made 75,000. The Appellant Phipps was Chairman of this company and Mr. Boardman was one of its directors. S+QMS^ kUeH|8H4W,G*3R]wHgMY&,*Hu`IcFWB In the present case, as the purchase of the shares was entirely out of the question, Regal Hastings was said to be inapplicable. The full text is available here: http://www.bailii.org/uk/cases/UKHL/1966/2.html, -- Download Boardman v Phipps [1967] 2 AC 46 as PDF --, Transvaal Lands Co v New Belgium (Transvaal) Lands & Development CO [1914] 2 Ch 488, http://www.bailii.org/uk/cases/UKHL/1966/2.html, Download Boardman v Phipps [1967] 2 AC 46 as PDF. law since Boardman v Phipps. View your signed in personal account and access account management features. The proposition of law involved in this case is that no person standing in a fiduciary position, when a demand is made upon him by the person to whom he stands in the fiduciary relationship to account for profits acquired by him by reason of his fiduciary position and by reason of the opportunity and the knowledge, or either, resulting from it, is entitled to defeat the claim upon any ground save that he made profits with the knowledge and assent of the other person.: The appellants obtained knowledge by reason of their fiduciary position and they cannot escape liability by saying that they were acting for themselves and not as agents of the trustees. S;70[`J)LQ,ecX_LK,*q3>~ B=eA* His Lordship regarded Boardman to be liable because he acquired the information in the course of the fiduciary relationship and because of the fiduciary relationship. (Keech v Sandford 1726) - landlord would not grant new lease to beneficiary so trustee took in his own name. in Aberdeen Railway v. Blaikie, 136 where he said: "And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. This decision was followed and applied in Boardman v Phipps. The majority agreed unanimously that liability to account for the profits made by virtue of a fiduciary relationship is strict and does not depend on fraud or absence of bona fides, and so Phipps and Boardman would have to account for their profits. Boardman v Phipps [1967] 2 AC 46. ", The phrase "possibly may conflict" requires consideration. Boardman v Phipps (1967) was a classic illustration of the principles set out in Lord Russell's statement. Following successful sign in, you will be returned to Oxford Academic. Lord Cohen said the information is not truly property and it does not necessarily follow that, because an agent acquired information and opportunity while acting in a fiduciary capacity, he is accountable. He attended the annual general meeting of Lester &amp; Harris Ltd, a company in which the trust had a substantial shareholding. National Provincial Bank Ltd v Ainsworth (1965) Alison Dunn; 20. The trust assets include a 27% holding in a textile company called Lexter & Harris. Boardman had concerns about the state of Lexter & Harris accounts and thought that, in order to protect the trust, a majority shareholding was required. 2 0 obj They realised together that they could turn the company around. In the present case, as the purchase of the shares was entirely out of the question, Regal Hastings was said to be inapplicable. However, to do this he needed a majority shareholding in the company. Boardman v Phipps answers this question: in the affirmative. Some societies use Oxford Academic personal accounts to provide access to their members. This has fuelled a more general debate as to whether the no-conflict rule should be harsh or more flexible. The plaintiff is ready to concede it, but in case the other beneficiaries are interested in the account, I think we should determine it on principle. A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions. Shibboleth / Open Athens technology is used to provide single sign-on between your institutions website and Oxford Academic. It publishes over 2,500 books a year for distribution in more than 200 countries. endobj Boardman felt that by asset-stripping the company he could increase the value of the shares. Judgement for the case Boardman v Phipps The solicitor to a family trust (S) and one Beneficiary (B)-there were several-went to the board meeting of a company in which the trust owned shares. Click the account icon in the top right to: Oxford Academic is home to a wide variety of products. Therefore, Boardman was speculating with trust property and should be liable. The majority of the House of Lords (Lords Cohen, Guest and Hodson) held that there was a possibility of a conflict of interest, because the solicitor and beneficiary might have come to Boardman for advice as to the purchases of the shares. 4 0 obj It is not contended that the trustees had such knowledge or gave such consent. p. 117D G, The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.: p. 123C, Whether there is a possibility of conflict depends on whether the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict: p. 124B, Note that in this case, not only did the principals, which are the trust beneficiaries, no lose anything, but they actually profited from the increase in value of shares held under the trust as a result of the actions of defendants thus it can be surmised that regardless of whether any wrongdoing or harm was caused to the principal, the fiduciary is liable for all profits acquired as a result of his position. They owed fiduciary duties (to avoid any possibility of a conflict of interest) because they were negotiating over use of the trust's shares. Case summary last updated at 24/02/2020 14:46 by the endobj Many of these journals are the leading academic publications in their fields and together they form one of the most valuable and comprehensive bodies of research available today. (eg- acting for multiple people) a. Throughout this phase Proprietary relief in Boardman v Phipps 6 [1967] 2 AC 46 (HL) 73. His Lordship regarded Boardman to be liable because he acquired the information in the course of the fiduciary relationship and because of the fiduciary relationship. The majority disagreed about the nature and relevance of information used by Boardman and Phipps. <> Fiduciary duty and the exploits of commercial enterprise often run counter to each other, while in this instance the opportunistic actions of a solicitor produces a profitable outcome for all involved, but not without a cost to the integrity of their working relationships. They suggested to Mr Fox, a trustee, that it would be desirable to acquire a majority shareholding, but Fox disagreed. Boardman was concerned about the accounts of the company, and thought that to protect the trust a majority shareholding is required. An important feature of the journal is the Case and Comment section, in which members of the Cambridge Law Faculty and other distinguished contributors analyse recent judicial decisions, new legislation and current law reform proposals. enough, and that am attempt to take control of the company should be initiated. Don't already have a personal account? <>>> This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account. BOARDMAN and Another v. PHIPPS Viscount Dilhorne Lord Cohen Lord Hodson Lord Guest Lord Upjohn. WI[y*UBNJ5U,`5B1F :IK6dtdj::yj This is because there is no possibility the trustee would seek Boardman's advice to purchase the shares and at any rate Boardman could have declined to act if given such request. They bought a majority stake. Study with Quizlet and memorize flashcards containing terms like Intro, Intro for fiduciaries, Boardman v Phipps (1967) and more. Priority of trustees indemnity inter se: pari passu or first in time priority? 39^40. P0Y|',Em#tvx(7&B%@m*k For librarians and administrators, your personal account also provides access to institutional account management. Boardman v Phipps seems like a more onerous application of rule against an unauthorised profit than that in Regal Hastings, all that is apparently required for a fiduciary to be liable is that ' a reasonable man looking at the relevant facts would think there was a real possibility of . They owed fiduciary duties (to avoid any possibility of a conflict of interest) because they were negotiating over use of the trusts shares. His Lordship distinguished Regal (Hastings) v Gulliver by restricting Regal Hastings to circumstances concerned with property of which the principals were contemplating a purchase. The proceedings. His daughter, Mrs Newman, was one of the trustees. The other two members of the majority, Lord Hodson and Lord Guest, opined that information can constitute property in appropriate circumstances and in the current case, the confidential information acquired can be properly regarded as property of the trust. He said unequivocally that knowledge learnt by a trustee in the course of his duties is not property of the trust and may be used for his own benefit unless it is confidential information which is given to him (i) in circumstances which, regardless of his position as a trustee, would make it a breach of confidence to communicate it to anyone or (ii) in a fiduciary capacity. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, co-appellant was another son of the testator, described as constructive trustees by virtue of a fiduciary relationship to the, B decided along with one of the trustees that the company was not doing well. This meant he had to account for all profits arising out the CoI, no matter how remote the probability was that this CoI would actually arise.
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