I agree with Colin, the Spread Trustee case is a tangle, and in light of the fissure in the court and the Guernsey basis of the case it should hardly be taken as anything more than speculative dicta concerning English law.

Lord Clarke's judgment includes this nugget:
para 61... the exemption from liability in respect of a trustee's gross negligence is not inimical to the fiduciary duties owed by a trustee for the simple reason that the absence of honesty and good faith inherent in the failure to perform fiduciary duties would take such conduct outside the scope of such an exemption.

This claim if given credence would amount to an undermining of the strict doctrine of Keech v Sandford, and arguably it weakens the force of His Lordship's other ruminations on how a fiduciary might breach his obligations through gross or other negligence. But again, the case might be confined to Guernsey trust law where the operation of the bon père de famille standard was in issue. Lady Hale in Spread Trustee points out that Millett LJ's experiments in the Court of Appeal in Mothew and Armitage v Nurse were never tested in an English court of final appeal, and the Privy Council hearing a Guernsey appeal is not the place to entrench or invent contentious jurisprudence for England.

Joshua