PLA Conference – The Good, the Bad and the Equity – Solicitors’ Breach of Trust in the Commercial Context

 

Introduction

Equity and common law have long had an unsettled relationship. Although in Royal Brunei Airlines v Tan, Lord Nicholls of Birkenhead commenced his speech with the observation that “[t]he proper role of equity in commercial transactions is a topical question”, it was certainly not a new one. In Re Wait, Atkin LJ was critical in a commercial case concerning the sale of flour of the introduction of well established equitable principles “into territory where they are trespassers”. Although in reality equity intervening in the commercial world was not uncommon, by the mid-1990s Sir Peter Millett wrote extra-judicially “[t]he intervention of equity in commercial transactions, long resisted by common lawyers, can no longer be withstood” such that it had, he remarked, “moved out of the family home and settled estate and into the market place”.

In the recent Supreme Court decision in AIB Group (UK) plc v Mark Redler & Co, Lord Toulson began his speech with the observation that, “140 years after the Judicature Act 1873, the stitching together of equity and the common law continues to cause problems at the seams.” This lecture looks at the approach adopted in that case and considers it against the context of remedies traditionally available for breach of trust.

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