Dear Colleagues,



(Apologies for cross-posting, and for doing so during the Obligations Conference)


The seven member panel of the UK Supreme Court has just decided the secret commission case of FHR European Ventures, concerning the sale of the Monte Carlo Grand Hotel. The Court has dismissed the appeal, unanimously, confirming that where an opportunity is exploited, there is indeed a constructive trust in favour of the principal. The judgment is here: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0049_Judgment.pdf
Perhaps surprisingly, Lister v Stubbs and Sinclair v Versailles [2011] EWCA Civ 347 http://www.bailii.org/ew/cases/EWCA/Civ/2011/347.html are for the large part overruled. There is extensive reference to academic literature and comparative authorities. Some quotes:

[44] Common law tracing is, of course, possible without a proprietary interest, but it is much more limited than equitable tracing. Lindley LJ in Lister at p 15 appears to have found it offensive that a principal should be entitled to trace a bribe, but he did not explain why, and we prefer the reaction of Lord Templeman in Reid, namely that a principal ought to have the right to trace and to follow a bribe or secret commission.
[45] As overseas countries secede from the jurisdiction of the Privy Council, it is inevitable that inconsistencies in the common law will develop between different jurisdictions. However, it seems to us highly desirable for all those jurisdictions to learn from each other, and at least to lean in favour of harmonising the development of the common law round the world.
Happy reading!
Best wishes,
James



--
James Lee
Senior Lecturer and Director of Admissions
Birmingham Law School, room 235
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk


Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx


SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1192219