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Trustee and Fiduciary Duties (Remedy for breach (Renumeration awards…

- - - - Hayton - Irreducible core content of Trusteeship
        
        "This, while there is a strong contract-like basis for gratuitous families trusts to be regarded as 'deals' made with trustees for the benefit of the beneficiaries, any provisions apparently reducing the deal, instead, to one for the benefit of the turstees or the settlor (or protector), entitled in default of the trustees exercising inherently revocable powers in favour of objects specified by the settlor, must either be struck out as inconsistent with, or repugnant to, the original deal for the benefit of the beneficiaries or be implemented as the real deal."
        
        Fundamental level of obligation needed for trust - can change but can't remove the "irreducible core"
        
        Same idea from Millett LJ in Armitage v Nurse: "If the beneficiaries have no rights enforceable against the trustees, then there are no trusts."
    - - Investment - want the trust to grow
      - Provide accounts and information
      - Safeguard trust assets - needs to be in an appropriate/responsible way - e.g. in bank
    - - Ensure equality between beneficiaries - must treat impartially, e.g. between life tenant and remainderman - interests of different classes of beneficiaries
        
        Re Smith (1971) - trustee found at fault because they favoured the remainderman with long term investment
      - Duty to follow the trust
        
        Eaves v Hickson, per Sir John Romilly at 141: "I am of the opinion, that it falls on the person who paid the money. Here the loss falls on the trustees, and the persons to whom the trust really belongs are not to be deprived of it. The trustees is bound to pay the trust fund to the right person."
        
        Trustees were induced to believe people were beneficiaries when they weren't - but bound to pay correctly and were personally liable to make up the amount
        
        Difficult considering inflation etc. - hard to get back if pay too much into pensions etc. - complicated
  - - - No - Barnett v Hartley - unless...
        
        Court authorises - Re Duke of Norfolk - agreed that the charging clause did not go far enough
        
        Professional trustees - ss28-29 Trust Act 2000 - statutory provision providing for reasonable renumeration for professionals
        
        Charging clause - could only come from fund - can modify positionthrough trust instrument - can negotiate re liability
        
        Beneficiaries consent
        
        And can't take commission - Williams v Barton
- - - - Phipps family trust - 27% shareholding in Leser & Harris Ltd
      - Trustees - Mrs P, Mrs Noble, Mr Fox
      - Beneficiaries - Mrs P (life), Mrs Noble, JP, TP (remainder)
      - Solicitor to trust - Boardman
      - Decision - 3-2
        
        Majority - confidential information - potential conflict of interest - fettered impartiality
        
        Minority - possible conflict too remote
- - - - Still self-dealing - Re Thompson's ST
- - - - What was the trustee's duty
      - Was the trustee in breach of duty
      - If so, did the breach cause the loss
      - If so, to what extent is the trustee liable to make good the loss?