Fiduciary Problem Question

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  • Fiduciary Duty: A Problem Question Procedure
    • 3. Breach of Fiduciary Duty
      • Breached through no conflcits rule.
        • The only way a fiduciary can escape liability is by obtaining the fully informed consent of the beneficiary.
      • Breached through no profits rule.
        • Can be breached two ways: by obtaining a profit or property that should have gone to the beneficiary of the fiduciary duty; orb)     Obtaining a profit or property from the misuse of ther position.
    • 1. Fiduciary Relationships
      • Standard list of presumed fiduciary relationships is found in Hospital Products (1984).
        • If a relationship  does not fall into the list of presumed relationships, you need to go back to the indicia of fiduciary relationships and argue that a fiduciary duty should be found on that basis.   
    • 2. Scope
      • This is a question of fact and will be determined by reference to the obligations expressly undertaken by the parties and the other indicia that lef to the relationship being considered fiduciary in the first place.
        • Bristol v Mothew: just because someone is a fiduciary does not mean that everything they do will amount to a breach.
    • 4. Defences to a Claim for Breach
      • Consent (Boardman v Phipps)
      • Note: there are a number of defences that can be raised.
      • Note: claims for breach of fiduciary duty are subject to a limitation period.
        • The Limitation Act 1980 does not specifically set out a fiduciary duty provision.
          • Most analogous section is s.21 - requires a claim to be brought within 6 years.

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