Abstract:
The law of fiduciary accountability has one function. It is designed to control the opportunism that compromises our limited access arrangements. That function has been consistently articulated in the law reports for centuries. Unfortunately the clarity of the law has faded in important respects as a result of misinformed and misconceived judicial analysis. The problematic ideas, in most instances, were not introduced as explicitly justified positive law reform. Rather, judges failed to appreciate the substance of the preceding case law or, fundamentally, the conceptual boundaries of the regulation. They believed they were stating the law, not disturbing it, as in fact they were. The judicial treatment of what today is described as the doctrine of presumed undue influence powerfully illustrates the deterioration in clarity. Over the course of the past two centuries the English courts have without justification slowly been separating the ‘doctrine’ of presumed undue influence from the general law of fiduciary accountability. There was no explicit declaration of that separation. Instead, in a blinkered process, judges simply repeatedly cited certain cases to produce what appeared to be a line of authority distinct from conventional fiduciary accountability. That appearance of difference led other judges to fabricate novel criteria for the application of the seemingly separate doctrine. That raised fresh concerns and accelerated the conceptual disorder.
Flannigan, Robert, Presumed Undue Influence: The False Partition from Fiduciary Accountability (October 15, 2015).
First posted 2015-11-10 19:42:31
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