This article reconsiders the causation rules of equitable compensation for breaches of non-custodial fiduciary duties. It argues that these rules should correspond with and reflect the nature of fiduciary duties. Being a compensatory remedy, correct identification of the breach and the relevant counterfactual are therefore crucial. The failure to do so has led to much unwarranted criticism of the Privy Council’s decision in Brickenden. It also argues that a fiduciary is precluded by principle and policy from relying on the ‘escape route’ argument that the loss would have been suffered by his principal anyway.
Jonathan T H Lee, Equitable compensation and Brickenden: fiduciary loyalty and causation, Trusts and Trustees, https://doi.org/10.1093/tandt/ttaa069. Published: 20 October 2020.