Express Trust Case: Constance V Barclays Bank Ltd

The Facts of the Case

The deceased in this case is Denise Albert Constance. The deceased was married to defendant till the year 1965 when the marriage between deceased and defendant broke down. The deceased along with plaintiff stayed together till the year 1967 till the death of deceased during 1974 in March, that passed away interstate. The first wife of deceased never got separated. A sum of £950 was got by the deceased in 1973 by cheque. The plaintiff along with deceased took the decision to deposit the money in “bank account”. A “deposit account” was opened in the deceased name because they were not wedded. As per the advice of “bank manager” to deceased, the plaintiff was permitted to take out money in their account only when the deceased has given authority to withdraw.

Until the death of deceased, the account was maintained by him. The plaintiff along with deceased both played Bingo together, and the winnings got deposited into their bank account. On regular basis, the plaintiff was told by deceased that this money was hers as well. Upon the death of deceased in 1974, the wife of deceased shut the account and demanded the amount that was in his bank account on the day of his demise and this made the part of his estate. The applicant appealed the “bank account” in the name of dead which was held on “trust” for his assistance and jointly in the name of petitioner. The applicant claimed that the bank account was an “express trust” which was orally declared by him on several cases.

The case was later presented to Judge Rawlins for trail and the judge ruled in plaintiff’s favour. The judge discovered bank account to be an express trust for plaintiff’s benefit and jointly with deceased. The respondent was given order to pay the amount of £499.21 to claimant and it amounted to half share of the account that plaintiff was permitted to get. The respondent however made an appeal to court and the judges unanimously took the decision of dismissing the appeal.

With respect to the question of law, the defendant made an appeal, whether or not, on the basis of case facts, an express declaration of trust was made. As per the case of plaintiff, whether the account belonging to departed was held under trust for deceased benefit and mutually herself. The evidence that was dependent in this conditions were the verses “this money is much as yours as mine”. The evidence was used on repeated basis by deceased. Nevertheless, the case of respondent stated that the account became his estate following deceased death and it was not held under “trust” for anybody else. Therefore, the query that arose is whether taking into account all the situations of case which involved the use of term, “this money is much as yours as mine” and this became express statement of trust.

The court held that the words “this money is much as yours as mine” was adequate to state the trust was formed. The beneficiaries in this ware Constance and his partner. Furthermore, the fact that the couple considering that money deposited in bank account was also considered. The defendant had contended that the express trust was never created till the extent. The court had agreed unanimously agreed that the judgement in favour of plaintiff was correct and upheld. Hence, the appeal got dismissed.

The Issue at Hand

The judgement given in this case stands strong even this date and it is considered in law courts. The judgement was upheld by the court since it was an equitable decision. This allowed the appeal to go against the equal looks till the extent and not the actual form. On repeated basis, the plaintiff was assured by the deceased that the money was much as hers as his and considering the entire surroundings of case it is very understood that there was clear intention of deceased.

In the case of “Keech v Sandford”, the trust beneficiary was a juvenile. The executor was required to renew the lease upon its expiration. Nevertheless, the application of trustee was declined based on the fact that a juvenile cannot be guaranteed by such lease. Hence, the executor went after to renew the lease in his individual name based on the intent that he could later pass the same to child. The trustee however was taking individual benefit from trust fund privately. Consequently, an application was launched on child’s behalf to law court for lease benefit to be held in trust on for him.  

The case of “Keech v Sandford (1976)” is considered as a foundational case. The case is derived from “English Trust Law”, regarding the fiduciary duty concerning loyalty. The case is related with the law of trusts and has created impact on director’s duties within the company law. The case holds that the trustee has a liability of discharging strict duties to be loyal in order to avoid any kind of conflict of interest.

The case is considered important because it is deriving partially from its past background, with “South Sea Buggle”. The judge that presided on this case was Lord King LC, who gave verdict on this case by replacing the previous judge Lord Chancellor who was considered guilty in the year 1725 for taking bribes and gambling with and also losing the money of client in the crash of “South Sea”. 

“Lord Macclesfield” had, perhaps not coincidently earlier considered fiduciary was held eligible for taking money from the trust, investing it on their behalf and keeping the profit, given that they reinstated the money back to trust. This principle was upturned by Keech and the rule in UK and England had upheld a strict antagonism towards any kind of probable conflict of interest ever since then. The actual cure of providing grant to “constructive trust” over property and considering the severe tactic that all the probability of clash of interest should be escaped necessarily as it was resulting from the common atrocity at that time.

In this case Mr Sandford was destined to be principal of trust, however, he has placed himself in clash of interest position. “Lord King LC” was however worried that the trustee may be able to exploit the chances to make use of trust possessions for their individual benefit rather than looking after it. The business speculators were using trust had lately caused crash in stock market. Strict duties regarding trustees were incorporated into “company law” and were simply applied on the “directors” and “chief executive officers”.

The Court's Decision and its Significance

It must be noted that the principle involving severe and total duties concerning loyalty was laid down in Keech was considered as a conclusive break with earlier case laws, as witnessed in “Holt v Holt”. The influence made in the case of Keech has touched further than the “obligations of trustees”, in “fiduciary duties” of company directors. The method that was taken in England is that if there is any probability of clash of interest then it means that there is a “breach of trust” unless the beneficiary of trust agreed to conflict.        

The judges that while there has not been any accusation of scam in this case, Lord Cancellor had developed a principle that the trustee should not take any “unauthorised profit” from the trust. In addition to this, such principle must be pursued strictly because it involved risk of fraud by letting the trustee to take benefit of leases that was renewed which was earlier held on trust.

The case shows that a fiduciary might break his duties to be loyal by taking benefits from third parties, irrespective of the fact that the benefits did not ever belonged to his principal. Some common examples are the fiduciary that accepts bribes to deceive the trust and confidence that is given to him by his principal along with company director that chases a commercial opportunity for obtaining individual gain. In this case, justice forces disgorgement.    

Dishonest in context of dishonest assistance is defined as the cause of action where a non-trustee becomes individually accountable for breach of trust that is committed by one or more than one trustees. The liability happens when the “non-trustee” is considered as a fixture to break of trust and it has represented in a dishonest manner. The test relating to trustworthiness in this regard is impartiality. Accountability gets levied on finding that the accessory has failed to act as a truthful individual in the given situation. By imposing this test, it is presumed that a truthful individual would not take part in deal if he or she knows that it would result in misuse of “trust assets”.

Before giving judgement in the case of Royal Brunei Airlines of Privy Council, this main cause of action was very normally known as knowing assistance. Nevertheless, in the situation of “Royal Brunei Airlines”, “Lord Nicholls” said that the usage of term “significant” was the main reason of confusion and it needs to be avoided.

The facts surrounding the case of Royal Brunei Airlines stated that it chosen “Borneo Leisure Travel Sdn Berhad” (Borneo) to work as its agent so that it can book passenger planes and cargo conveyance in the areas of “Sabah and Sarawak” in Malaysia. Mr Tan was the “managing director” of Borneo’s and also its main shareholder. As noted, Mr Borneo was getting money for Royal Brunei, that was based on the agreement that it would remain in trust under a distinct account until it is approved. However, Mr Borneo with the help of Mr Tan’s complete information and support, paid the trust cash into its “current account” and made use of it for its individual business purpose. Consequently, Borneo travel was unable to pay the money on time which eventually resulting in termination of contract and Borneo became bankrupt. Royal Brunei demanded that the trust money should be returned back from Mr Tan.

The chief issue that surrounded this case was whether or not should “Royal Brunei” make a claim to get the trust money back from Mr Tan, because of his knowledge assistance in break of trustee duties and knowing about the receipt of trust possessions. The Privy Council in its verdict stated that it was the dishonest assistance mind state that actually matters. The knowledge is dependent on “progressively blackening scale”. The test for being considered liable in helping break of trust should be dependent on the deceitfulness that is objective. It is not relevant what sort of mind state is for primary trustee, given that the assistant is himself not honest.

It is irrespective of whatever might be the position in some illegal or other circumstances or in respect of addition liability principle that is acting deceitfully or with lack of integrity, which is identical, it simply implies not acting as the honest person would act in given circumstances. This is considered as an objective standard and at initial sight it might appear surprising. Honesty has been considered as a connotation of subjectivity and it is different from the objectivity of negligence.

Honesty is considered as the robust subjective element which involves describing the type of conduct assessed in respect of what an individual actually knew during that time, different from what a reasonable individual might have known or appreciated. Furthermore, honesty and its corresponding item dishonesty are largely concerned with advertent behaviour and not the inadvertent behaviour. Carelessness cannot be considered as dishonesty. Hence, for majority of the part dishonesty needs to be equated with conscious rudeness. Nevertheless, such type of subjective characteristics relating to honesty does not implies that individuals have the freedom of setting their individual honesty standard in specific situations. Honesty cannot be considered as an optional scale, with high or low values in accordance with moral standards of every person.

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