Greetings to all,

 

I hope everyone is doing well as we get ready, here in Canada and the US, for the new academic year.

 

Congratulations to our friends and colleagues Elise Bant, Kit Barker and Simone Degeling on the publication of their Research Handbook on Unjust Enrichment and Restitution (Edward Elgar).

“This comprehensive yet accessible Research Handbook offers an expert guide to the key concepts, principles and debates in the modern law of unjust enrichment and restitution.” Details are here:

https://www.e-elgar.com/shop/gbp/research-handbook-on-unjust-enrichment-and-restitution-9781788114257.html

 

Steve Hedley’s Private Law Theory blog announced a paper by Mat Campbell called ‘Doubting the Subsidiarity of Unjust Enrichment’: https://private-law-theory.org/?p=25355

That page gives a link to the paper on SSRN, although at this precise moment, SSRN appears to be down.

 

Finally, those interested in fiduciary relationships (or duties, or obligations) will want to review the rather strange case of Lehtimäki v Cooper [2020] UKSC 33. It involves issues of fiduciary duty arising in the context of a charity that is organized as a company limited by guarantee. Lady Arden concludes that in this particular situation, a member (comparable to a shareholder in a business corporation) owes the fiduciary of a charity trustee (where there were only three members who needed to approve a decision, and the other two were disqualified from voting). Her lengthy judgment, in my view, makes a series of important points about fiduciary law. It is not, however, a majority judgment; that judgment was given by Lord Briggs. The majority concludes, as I read them ([208]), that it is a breach of fiduciary duty by a fiduciary to refuse to exercise their fiduciary power in accordance with the order of a court. I think Lady Arden is correct when she concludes ([183]) that the reasoning of the majority is circular on this point, since the prior question is whether the fiduciary is subject to the jurisdiction of the court at all in relation to how they should exercise their fiduciary power. However, reading it all together, it seems to me that it is getting extremely difficult to hold the position that in the UK, fiduciary duties are limited to proscriptive duties to avoid conflicts and unauthorized profits. As in Canada and (according to Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6, [174]) Australia, it seems clear (as suggested by Pitt v Holt and Eclairs Group) that such duties extend to the proper exercise of fiduciary powers. The President of the Court, Lord Reed, in a one sentence judgment, seems to dissent and concur all at once.

 

Finally, I remind RDG members who are not signed up to the listserv for Global Seminars on Private Law Theory that these seminars are running about every two weeks, via zoom, on a whole range of private law topics with speakers from around the world. If you are missing conferences and would like to join in, drop me a line.

 

All the best,

Lionel