Advanced Equity and Trusts Law - alastairhudson.com

Reading: Hudson, section 2.3.3; and the essay comprising
chapter 14.
A trustee is an example of a fiduciary, so it is important to understand what the concept of fiduciary
responsibility entails.
‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is
the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. The core liability has
several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place
himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of
a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is
sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.’
- Bristol and West Building Society v Mothew [1998] Ch 1 at 18, per Millett LJ
"A person will be a fiduciary in his relationship with another when and in so far as that other is entitled to expect
that he will act in that other's interests or (as in a partnership) in their joint interests, to the exclusion of his own
several interest."
Paul Finn, "Fiduciary Law and the Modern Commercial World",
in Commercial Aspects of Trusts and Fiduciary Relationships
(ed. McKendrick, 1992), p. 9.
See also: Finn, Fiduciary Obligations (1977);
Finn, "The Fiduciary Principle", in Equity, Fiduciaries and Trusts (ed. T.G. Youdan, 1989);
A.J. Oakley, Constructive Trusts (1997), Ch. 3; and
A.J. Oakley (ed.), Trends in Contemporary Trust Law (1996).
(G) The benefits of trusts
Reading: Hudson, section 2.5
A framework for understanding change in the law of trusts: three conceptions of the trust -
moralistic, individual property, capital management: see Cotterrell, "Trusting in Law" (1993)
46 CLP 75, 86-90.
(H) The core principles of equity
Reading: Hudson, section 1.4
The thirteen propositions set out below are culled, as a list, primarily from Snell’s Equity, (31 st ed.,
2004) by McGhee, 27.
� Equity will not suffer a wrong to be without a remedy
� Equity follows the law
� Where there is equal equity, the law shall prevail
� Where the equities are equal, the first in time shall prevail
� He who seeks equity must do equity
� He who comes to equity must come with clean hands
� Delay defeats equities
� Equality is equity
� Equity looks to the intent rather than to the form
� Equity looks on that as done that which ought to have been done
� Equity imputes an intention to fulfil an obligation
� Equity acts in personam
Hudson adds to that list three further principles:-
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