Tuesday 19 July 2022

UK: England and Wales: a fiduciary relationship?

Judgment was delivered today by Mrs Justice Cockerill in Kelly v Baker and Braid [2022] EWHC 1879 (Comm). The case is interesting because of the circumstances in which the trial judge was required to consider whether fiduciary duties were owed to a shareholder (Mr Kelly) by those who had led a management buy-out (Mr Baker and Mr Braid). 

Mr Kelly argued that Mr Baker and Mr Braid (who had worked in, or for, various family companies over the years) had failed to inform him that the transaction - the sale of two family businesses for £100 million - was a management buy-out. Mr Kelly argued that he trusted Mr Baker and Mr Braid implicitly and that they were in a position of trust because of the nature of their relationship with the Kelly family. The trial judge found that no fiduciary relationship existed and observed (at para. [80]):

...there is no set of circumstances remotely akin to the quasi-familial closeness which in some of the cases has been found to exceptionally create a fiduciary relationship. Further I note that even if such a relationship of closeness had been made out that would not have created a fiduciary relationship as regards this particular transaction – here one must have in mind the dicta in such cases as Vald Nielsen (at [744]) as regards the scope of the duty."

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