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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Regal (Hastings) Ltd v Gulliver [1942] UKHL 1 (20 February 1942)
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Cite as: [1967] 2 AC 134, [1942] UKHL 1, [1942] 1 All ER 378

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JISCBAILII_CASE_TRUSTS

    Die Veneris, 20° Februarii, 1942

    Parliamentary Archives,
    HL/PO/JU/4/3/973

    REGAL (HASTINGS) LIMITED

    Viscount
    Sankey

    Lord
    Russell of
    Killowen

    Lord
    Macmillan

    Lord
    Wright

    Lord
    Porter

    V.

    GULLIVER AND OTHERS.
    Viscount Sankey


    MY LORDS,

    This is an Appeal by Regal (Hastings) Limited from an Order of
    His Majesty's Court of Appeal dated the 15th February, 1941. That
    Court dismissed the Appeal of the Appellants from a judgment of
    the Hon. Mr. Justice Wrottesley, dated the 3Oth August, 1940. The
    Appeal was brought by special leave granted by this House on the
    2nd April, 1941.

    The Appellants we're the plaintiffs in the action and are referred
    to as "
    Regal"; the Respondents were the Defendants.

    The action was brought by Regal against the first five Respon-
    dents, who were former Directors of Regal, to recover from them,
    sums of money amounting to £7,010 8s. 4d., being profits made by
    them upon the acquisition and sale by them of shares in the sub:
    sidiary company formed by Regal and known as Hastings Amal-
    gamated Cinemas Limited. This Company is referred to as
    "
    Amalgamated ". The action was brought against the Defendant,
    Garton, who was Regal's former solicitor, to recover the sum of
    £1,402 1s. 8d., being profits made by him in similar dealing in the
    said shares. There were alternative claims for damages for mis-
    feasance and for negligence.

    The action was based on the allegation that the directors and
    the solicitor had used their position as such to acquire the shares
    in Amalgamated for themselves, with a
    view to enabling them at
    once to sell them at a very substantial profit, that they had obtained
    that profit by using their offices as directors and solicitor and were,
    therefore, accountable for it to Regal, and also that in so acting
    they had placed themselves in a position in which their private
    interests were likely to be in conflict with their duty to Regal. The
    facts were of a complicated and unusual character. I have had the
    advantage of reading, and I agree with, the statement as to them
    prepared by my noble and learned friend, Lord Russell of
    Killowen. It will be sufficient for my purpose to set them out very
    briefly.

    In the summer of 1935 the directors of Regal, with a view to the
    future development or sale of their Company, were anxious to
    extend the sphere of its operations by the acquisition of other
    cinemas. In Hastings and St. Leonards there were two small ones
    called the Elite and the De Luxe. Negotiations began both for
    their acquisition or control by lease or otherwise and for the dis-
    posal of Regal itself.

    Part of the machinery for the purpose was the creation by Regal
    of
    a subsidiary company, the Amalgamated. It was registered on
    the 26th September, 1935, with a capital of £5,000 in £1 shares.
    The directors were the same as those of Regal with the addition
    of Garton. It was thought that only £2,000 of the capital was to
    be issued and that it would be subscribed by Regal, who would
    control it.

    Then difficulties began with the Elite and the De Luxe as to a
    lease, amongst others whether the directors of Amalgamated
    would guarantee the rent. The directors were not willing to do so.

    At last all difficulties were surmounted at a crucial meeting of
    October 2nd, 1935. It was a peculiar meeting, the directors both
    of
    Regal and Amalgamated were summoned to attend at the same

    2 [2]

    place and at the same time. They did so, but, although separate
    minutes were subsequently attributed to each Company, it is not
    easy to say from the evidence at any particular moment for which
    company a particular director was appearing. It was resolved
    that Regal should apply for 2,000 shares in Amalgamated. It was
    agreed that £2,000 was the total sum which Regal could find. The
    value of the leases of the two cinemas was taken at £15,000. The
    draft lease was approved. Each of The Regal directors, except
    Gulliver, the Chairman, agreed to apply for 500 shares, Gulliver
    saying
    he would find people to take up 500. The Regal directors
    requested Garton to take up 500. I will deal later with particular
    evidence applying to Gulliver and Garton, who delivered separate
    defences.

    Thus the capital of Amalgamated was fully subscribed, Regal
    taking
    2,000 shares, the five Respondents taking 500 shares each,
    and the persons found by Gulliver the remaining 500. The shares
    were duly paid for and allotted. In the final transaction shortly
    afterwards these shares were sold at substantial profit and it is this
    profit which Regal asks to recover in this action.

    The directors gave evidence and were severely cross-examined
    as to their good faith. The trial Judge said: " All this subsequent
    " history does not help me to decide whether the action of the
    " directors of the Plaintiff company and their solicitor on the 2nd
    " October was bona fide in the interests of the company and not
    " mala fide and in breach of their duty to the company ", and later
    on he said: " I must take it that in the realisation of those facts it
    " means that I cannot accept what has to be established by the
    " Plaintiff, and that is that the Defendants here acted in ill faith ",
    and later, " Finally I have to remind myself, were it necessary, that
    " the burden of proof, as in a criminal case, is the Plaintiffs', who
    " must establish the fraud they allege. On the whole I do not think
    " the Plaintiff company succeeds in doing that and, therefore, there
    " must be judgment for the Defendants."

    This latter statement was criticised by du Parcq, L.J., in the
    Court of Appeal, who says: " To anyone who has read the plead-
    " ings but not followed the course of the trial that would seem a
    " remarkable statement on the part of the learned Judge, because
    " it is common ground that there is no allegation of fraud in the
    " pleadings whatever . . . but the course which the case has taken
    " makes the learned Judge's statement quite comprehensible
    " because it does appear to have been put before him as, in the
    " main at any rate, a case of fraud."


    It must be taken, therefore, that the Respondents acted bona fide
    and without fraud.

    " In the Court of Appeal the Master of the Rolls said: " If the
    " directors in coming to the conclusion that they could not put up
    " more than £2,000 of the company's money had been acting in
    " bad faith, and if that restriction of the company's investment had
    " been done for the dishonest purpose of securing for themselves
    " a profit which not only could but which ought to have been pro-
    " cured for their company, I apprehend that not only could they
    " not have held that profit for themselves if the contemplated trans-
    " action had been carried out, but they could not have held a profit
    " for themselves even if that transaction was abandoned and
    " another profitable transaction was carried through in which they
    " did in fact realise a profit through the shares ... but once they
    " have admittedly bona fide come to the decision to which they
    " came in this case, it seems to me that their obligation to refrain
    " from acquiring those shares for themselves comes to an end. In
    " fact, looking at it as a matter of business, if that was the conclusion
    " which they came to, a conclusion which in my judgment was

    [3] 3

    " amply justified on the evidence from the business point of
    "
    view, then there was only one way left of raising the money,
    " and that was putting it up themselves. . . . That being so, the
    " only way in which these directors could secure that benefit
    " for their company was by putting up the money themselves.
    " Once that decision is held to be a bona fide one and fraud drops
    " out of the case, it seems to me there is only one conclusion,
    " namely that the appeal must be dismissed with costs". It
    seems therefore that the absence of fraud was the reason of the
    decision.

    In the result, the Court of Appeal dismissed the Appeal and from
    their decision the present Appeal is brought.

    The Appellants say they are entitled to succeed—

    " (1) because the Respondents secured for themselves
    " the profits upon the acquisition and sale of the shares in
    " Amalgamated by using the knowledge acquired as
    " directors and solicitor respectively of
    Regal and by using
    " their said respective positions and without the knowledge
    " or consent of Regal;

    " (2) because the doctrine laid down in such cases with
    " regard to trustees is equally applicable to directors and
    " solicitors ".

    Although both in the Court of first instance and the Court of
    Appeal the question of fraud was the prominent feature, the Appel-
    lants' Counsel in this House at once stated that it was no part of his
    case and quite irrelevant to his arguments. His contention was
    that the Respondents were in a fiduciary capacity in relation to
    the Appellants and as such accountable in the circumstances for the
    profits they made on the sale of the shares.

    As to the duties and liabilities of those occupying such a fiduciary
    position, a number of cases were cited to us which were not brought
    to the attention of the trial Judge. In my
    view the Respondents
    were in a fiduciary position and their liability to account does not
    depend upon proof of mala fides.

    The general rule of equity is that no one who has duties of a
    fiduciary nature to perform is allowed to enter into engagements in
    which he has or can have a personal interest conflicting with the
    interests of those whom he is bound to protect. If he holds any
    property so acquired as trustee he is bound to account for it to his
    cestui que trust.

    The earlier cases are concerned with trusts of specific property,
    Keech
    v. Sandford (1726) Sel. Ch. Cas. 61, Wh. and Tud. Edition
    9th, II, 648, per Lord Chancellor King.

    The rule, however, applies to agents, as for example solicitors
    and directors, when acting in a fiduciary capacity. In Ex parte
    James
    (1802) 8
    Ves. jun. 337; the headnote reads: " Purchase of a
    " bankrupt's estate by the solicitor to the commission set aside. The
    " Lord Chancellor would not permit him to bid upon the resale,
    " discharging himself from the character of solicitor, without the
    " previous consent of the persons interested, freely given, upon full
    " information ". Lord Eldon said, p. 345: " The doctrine as to
    " purchase, by trustees, assignees, and persons having a confidential
    " character, stands much more upon general principle than upon
    " the circumstances of any individual case. It rests upon this, that
    " the purchase is not permitted in any case, however honest the
    " circumstances, the general interests of justice requiring it to be
    " destroyed in every instance, as no Court is equal to the examina-
    " tion and ascertainment of the truth in much the greater number
    " of cases." In Hamilton v. Wright (1842), 9 Cl. and Fin. III, the

    4 [4]

    headnote reads: " A trustee is bound not to do anything which can
    " place him in a position inconsistent with the interests of his trust,
    " or which can have a tendency to interfere with his duty in dis-
    " charging it. Neither the trustee nor his representative can be
    " allowed to retain an advantage acquired in violation of this rule."

    Lord Brougham said, at p. 124, "The knowledge which he
    " acquires as trustee is of itself sufficient ground for disqualification,
    " and of requiring that such knowledge shall not be capable of
    " being used for his own benefit to injure the trust. The ground of
    " disqualification is not merely because such knowledge may enable
    " him actually to obtain an undue advantage over others." In
    Aberdeen Railway Company
    v. Blaikie (1853), I, MacQ., 461, the
    headnote reads: " The director of a railway company is a trustee,
    " and as such is precluded from dealing on behalf of the company
    " with himself or with a firm of which he is a partner." Lord
    Cranworth said, at p. 471, "A corporate body can only act by
    " agents, and it is of course the duty of those agents so to act as best
    " to promote the interests of the corporation whose affairs they are
    " conducting. Such agents have duties to discharge of a fiduciary
    " nature towards their principal, and it is a rule of universal appli-
    " cation that no one having such duties to discharge shall be allowed
    " to enter into engagements in which he has or can have a personal
    " interest conflicting, or which possibly may conflict, with the
    " interests of those whom he is bound to protect."

    It is not, however, necessary to discuss all the cases cited because
    the Respondents admitted the generality of the rule as contended
    for by the Appellants but were concerned rather to confess and
    avoid it. Their contention was that in this case upon a true perspec-
    tive of the facts they were under no equity to account for the profits
    they made. I will deal first with the Respondents, other than
    Gulliver and Garton. We were referred to the Imperial Hydro-
    pathic Company v. Hampson
    (1882), 23, Ch. D., 1, where Bowen,
    L.J., at p. 12, drew attention to the difference between directors and
    trustees, but the case is not an authority for contending that a
    director cannot come within the general rule.

    No doubt there may be exceptions to the general rule, as for
    example where a purchase is entered into after the trustee has
    divested himself of his trust sufficiently long before the purchase to
    avoid the possibility of his making use of special information
    acquired by him as trustee: (see the remarks of Lord Eldon, in ex
    Parte James (ubi supra)
    at p. 352) or where he purchases with full
    knowledge and consent of his cestui que trust. Imperial
    v. Hamp-
    son (ubi supra)
    makes no exception to the general rule that a solici-
    tor or director if acting in a fiduciary capacity is liable to account
    for the profits made by him from knowledge acquired when so
    acting.

    It is then argued that it would have been a breach of trust for the
    Respondents as directors of
    Regal to have invested more than
    £2,000 of Regal's money in Amalgamated and that the transaction
    would never have been carried through if they had not themselves
    put up the other £3,000. Be it so, but it is impossible to maintain
    that because it would have been a breach of trust to advance more
    than £2,000 from Regal and that the only way to finance the matter
    was for the directors to advance the balance themselves, a situation
    arose which brought the Respondents outside the general rule and
    permitted them to retain the profits which accrued to them from
    the action they took. At all material times they were directors and
    in a fiduciary position, and they used and acted upon their exclusive
    knowledge acquired as such directors. They framed resolutions
    by which they made a profit for themselves. They sought no
    authority from the company to do so, and by reason of their posi-
    tion and actions, they made large profits for which, in my view,
    they
    are liable to account to the company.

    [5] 5

    I now pass to the cases of Gulliver and Garton. Their liability
    depends upon a careful examination of the evidence. Gulliver's
    case
    is that he did not take any shares and did not make any profit
    by selling them. His evidence, which is substantiated by the docu-
    ments, is as follows. At the board meeting of October 2nd he was
    not anxious to put any money of his own into Amalgamated. He
    thought he could find subscribers for £500 but was not anxious to
    do so. He did, however, find subscribers—£200 by South Down
    Land Company, £100 by a Miss Geering and £200 by Seguliva
    A.G., a Swiss company. The purchase price was paid by these
    three, either by cheque or in account, and the shares were duly
    allotted to them. The shares were held by them on their own
    account. When the shares were sold the moneys went to them and
    no part of the moneys went into Gulliver's pocket or into his
    account.

    In these circumstances, and bearing in mind that Gulliver's
    evidence
    was accepted, it is clear that he made no profits for which
    he is liable to account. The case made against him rightly fails and
    the appeal against the decision in his favour should be dismissed.

    Carton's case is that in taking the shares he acted with the know-
    ledge and consent of
    Regal and that consequently he comes within
    the exception to the general rule as to the liability of the person
    acting in a fiduciary position to account for profits.

    At the meeting of October 2nd, Gulliver, the Chairman of Regal,
    and
    his co-directors were present. He was asked in cross-examina-
    tion about what happened as to the purchase of the shares by the
    directors. The question was: " Did you say to Mr. Garton, ' Well,
    " Garton, you have been connected with Bentley's for a long time
    " will you not put up £500? ' His answer was, " I think I can
    " put it higher. I invited Mr. Garton to put the £500 and to make
    " up the £3,000." This was confirmed by Garton in examination
    in chief. In these circumstances, and bearing in mind that this
    evidence was accepted, it is clear that he took the shares with the
    full knowledge and consent of Regal and that he is not liable to
    account for profits made on their sale. The appeal against the
    decision in his favour should be dismissed.

    The appeal against the decision in favour of the Respondents
    other than
    Gulliver and Garton should be allowed, and I agree
    with the order to be proposed by my noble and learned friend,
    Lord Rusell of Killowen as to amounts and costs. The appeal
    against the decision in favour of Gulliver and Garton should be
    dismissed with costs.

    18679 A3

    Viscount

    Sankey

    Lord

    Russell of

    Killowen

    Lord

    Macmillan

    Lord

    Wright

    Lord

    Porter

    [6]
    REGAL (HASTINGS), LIMITED

    v.
    GULLIVER AND OTHERS.

    Lord Russell of Killowen

    MY LORDS,

    The very special facts which have led up to this litigation require
    to be stated in some detail, in order to make plain the point which
    arises for decision on this Appeal.

    The Appellant is a limited company called Regal (Hastings), Ld.,
    and may conveniently be referred to as Regal. Regal was incor-
    porated in the year 1933 with an authorised capital of £20,000
    divided into 17,500 preference shares of £1 each and 50,000 ordi-
    nary shares of one shilling each. Its issued capital consisted of
    8,950 preference shares and 50,000 ordinary shares. It owned,
    and managed very successfully, a freehold cinema theatre at
    Hastings called the Regal. In July, 1935, its board of directors
    consisted of one Walter Bentley and the Respondents Gulliver,
    Bobby,
    Griffiths, and Bassett Its shareholders were twenty in
    number. The Respondent Garton acted as its solicitor.

    In or about that month, the Board of Regal formed a scheme
    for acquiring a lease of two other cinemas (viz., the Elite at
    Hastings, and the Cinema de Luxe at St. Leonards), which were
    owned and managed by a company called Elite Picture Theatres
    (Hasting and Bristol) Limited. The scheme was to be carried out
    by obtaining the grant of a lease to a subsidiary limited company,
    which was to be formed by Regal, with a capital of 5,000 £1 shares,
    of which Regal was to subscribe for 2,000 in cash, the remainder
    being allotted to Regal or its nominees as fully paid for services
    rendered. The whole beneficial interest in the lease would, if this
    scheme were carried out, enure solely to the benefit of Regal and
    its shareholders, through the shareholding of Regal in the subsidiary
    company.

    The Respondent Garton, on the instructions of Regal, negotiated
    for the acquisition of the lease, with the result that an offer to take
    a lease for 35 or 42 years at a rent of £4,600 for the first year, rising
    in the second and third years, up to £5,000 in the fourth and sub-
    sequent years, was accepted on behalf of the owners on the 21st
    August, 1935, subject to mutual approval of the form of the lease.
    Subsequently the owners of the two cinemas required the rent under
    the proposed lease to be guaranteed.

    On the nth September, 1935, Walter Bentley died; and on the
    18th September, 1935, his son, the Respondent Bentley, who was
    one of his executors, was appointed a director of
    Regal. It should
    now be stated that concurrently with the negotiations for the
    acquisition of a lease of the two cinemas, Regal was contemplat-
    ing a sale of its own cinema, together with the leasehold interest
    in the two cinemas which it was proposing to acquire.

    On the 18th September, 1935, at a Board meeting of the Regal,
    the
    Respondent Garton was instructed that the directors were pre-
    pared to give a joint guarantee of the rent of the two cinemas, until
    the subscribed capital of the proposed subsidiary company
    amounted to £5,000. He was further instructed to deal with all
    offers received for the purchase of Regal's own assets. On the 26th
    September, 1935, the proposed subsidiary company was registered
    under the name Hastings Amalgamated Cinemas, Ld., which may
    tor brevity be referred to as Amalgamated. Its directors were the
    five directors of Regal, and in addition the Respondent Garton.

    [7] 2

    Harry Bentley, who had been appointed a director of Regal
    only
    on the 18th September at the end of the Board meeting of
    that date, enquired from Garton the position as regards the new
    company Amalgamated. In reply he received a letter dated the
    26th September, 1935, in which the position, as at that date, is set
    out by Garton. After stating that the capital of Amalgamated is
    £5,000, of which £2,000 is being subscribed by Regal, " which sum
    " will form virtually the whole of the present paid up capital" of
    Amalgamated, and that the rent is to be guaranteed by the directors
    so long as the issued capital of Amalgamated is under £5,000, he
    concludes as follows: —

    " Inasmuch as it is the intention of all the parties that the Regal
    (Hastings)
    Ltd. will not only control the Hastings (Amalgamated) Cinemas
    Ltd., but will continue to hold virtually the whole of the capital, the
    position of a shareholder of Regal (Hastings) Ltd. is merely that he has
    the advantage of a possible asset of the two new cinemas on sale by the
    Regal (Hastings) Ltd. of its undertaking, so that the price realised to the
    shareholders of the Regal (Hastings) Ltd. will be the amount that he
    would normally have received for his interest in such company, plus his
    proportion of the sale price of such two new cinemas."

    On the 2nd October, 1935, an offer was received from would-be
    purchasers offering a net sum of £92,500 for the
    Regal cinema and
    the lease of the two cinemas. Of this sum £77,500 was allotted as
    the price of Regal's cinema, and £15,000 as the price of the two
    leasehold cinemas. This splitting of the price seems to have been
    done by the purchasers at the request of the Respondent Garton;
    but it must be assumed in favour of the Regal directors that they
    were satisfied that £77,500 was not too low a price to be paid for
    their company's cinema, with the result that £15,000 cannot be
    taken to have been in excess of the value of the lease which Amal-
    gamated was about to acquire.

    On the afternoon of that same 2nd October, the six Respondents
    met at No. 62 Shaftesbury Avenue, London, the registered offices of
    Regal. Various matters were mentioned and discussed between
    them, and they came to certain decisions. Subsequently minutes
    were prepared which record the different matters as having been
    transacted at two separate and distinct Board meetings, viz., a
    meeting of the Board of Regal, and a meeting of the Board of
    Amalgamated. The Respondent Gulliver stated in his evidence
    that two separate meetings were held, that of the Amalgamated
    Board being held and concluded, before that of the Regal Board
    was begun. On the other hand the Respondent Bentley says " It
    " was more or less held in one lump, because we were talking about
    " selling the three properties." And the Respondent Garton states
    that after it was decided that Regal could only afford to put up
    £2,000 in Amalgamated, which was purely a matter for the con-
    sideration of the Regal Board, the next matter discussed was one
    which figures in the minutes of the Amalgamated Board meeting.
    Moreover both meetings are recorded in the minutes as having been
    held at 3 p.m.

    Whatever may be the truth-as to this, the matters discussed
    and decided included the following: (1) Regal was to apply for
    2,000 shares in Amalgamated: (2) the offer of £77,500 for the
    Regal cinema and £15,000 for the two leasehold cinemas was
    accepted: (3) the solicitor reporting that completion of the lease
    was expected to take place on the 7th October, it was resolved that
    the seal of Amalgamated be affixed to the engrossment when avail-
    able : and (4) the Respondent Gulliver having objected to guaran-
    teeing the rent it was resolved—here I cite the words of the minute
    —" that the directors be invited to subscribe for 500 shares each
    " and that such shares be allotted accordingly."


    3 [8]

    On the 7th October, 1935, a lease of the two cinemas was
    executed in favour of Amalgamated, for the term of 35 years from
    the 29th September, 1935, in accordance with the agreement pre-
    viously come to. The shares of Amalgamated were all issued, and
    were allotted as follows: 2,000 to Regal, 500 to each of the Respon-
    dents Bobby, Griffiths, Bassett, Bentley, and Garton, and (by the
    direction of the Respondent Gulliver) 200 to a Swiss company called
    Seguliva A.G., 200 to a company called South Downs Land Co.,
    Ltd., and 100 to a Miss Geering.

    In fact the proposed sale and purchase of the Regal cinema
    and the two leasehold cinemas fell through. Another proposition,
    however, took its place, viz., a proposal for the purchase from the
    individual shareholders of their shares in Regal and Amalgamated.
    This proposal came to maturity by agreements dated the 24th
    October, 1935, as a result of which the 3,000 shares in Amalgamated
    held otherwise than by Regal were sold for a sum of £3 16s. 1d. per
    share, or in other words at a profit of £2 16s. 1d. per share over the
    issue price of par.

    As a sequel to the sale of the shares in Regal, that company
    came under the management of a new Board of directors, who
    caused to be issued the writ which initiated the present litigation.

    By this action Regal seek to recover from its five former direc-
    tors and its former solicitor a sum of £8,142 l0s. 0d. either as
    damages or as money had and received to the Plaintiff's use. The
    action was tried by Wrottesley J., who entered judgment for all the
    Defendants with costs. An appeal by the Plaintiffs to the Court
    of Appeal was dismissed with costs.

    My Lords, those are the relevant facts which have led up to the
    debate in your Lordships' House, and I now proceed to consider
    whether the Appellant is entitled to succeed against any and which
    of the Respondents.

    The case has, I think, been complicated and obscured by the
    presentation of it before the trial judge. If a case of wilful mis-
    conduct or fraud on the part of the Respondents had been made
    out, liability to make good to
    Regal any damage which it had
    thereby suffered could no doubt have been established; and efforts
    were apparently made at the trial by cross-examination and other-
    wise to found such a case. It is, however, due to the Respondents
    to make it clear at the outset that this attempt failed. Nor was the
    case so presented to us here. We have to consider the question of
    the Respondent's liability on the footing that in taking up these
    shares in Amalgamated they acted with bona fides, intending to act
    in the interest of Regal.

    Nevertheless they may be liable to account for the profits which
    they have made, if while standing in a fiduciary relationship to
    Regal they have by reason and in course of that fiduciary relation-
    ship made a profit

    This aspect of the case was undoubtedly raised before the trial
    judge, but in so far as he deals with it in his judgment, he deals with
    it on a wrong basis. Having stated at the outset quite truly that
    what he calls " this stroke of fortune " only came the way of the
    Respondents because they were the directors and solicitor of
    Regal,
    he
    continues this—

    ' But in order to succeed the Plaintiff company must show that the
    "Defendants both ought to have caused and could have caused the Plaintiff
    "company to subscribe for these shares, and that the neglect to do so caused
    "a loss to the Plaintiff company. Short of this, if the Plaintiffs can estab-
    "lish that though no loss was made by the company, yet a profit was cor-
    "ruptly made by the directors and the solicitor, then the company can claim
    "to have that profit handed over to the company, framing the action in such
    "a case for money had and received by the Defendants for the Plaintiffs'
    "use."

    [9] 4

    Other passages in his judgment indicate that in addition to this
    " corrupt" action by the directors, or perhaps alternatively, the
    Plaintiffs in order to succeed must prove that the Defendants acted
    mala fide, and not bona fide in the interests of the company, or that
    there was a plot or arrangement between them to divert from the
    company to themselves a
    valuable investment. However relevant
    such considerations may be in regard to a claim for damages result-
    ing from misconduct, they are irrelevant to a claim against a person
    occupying a fiduciary relationship towards the Plaintiff for an
    account of the profits made by that person by reason and in course
    of that relationship.

    In the Court of Appeal, upon this claim to profits, the view was
    taken that in order to succeed the Plaintiff had to establish that
    there was a duty on the Regal directors to obtain the shares for
    Regal. Two extracts from the judgment of the Master of the Rolls
    show this. After mentioning the claim for damages, he says: —

    " The case is put on an alternative ground. It is said that in the cir-
    " cumstances of the case the directors must be taken to have been acting in
    " the matter of their office when they took those shares; and that accordingly
    " they are accountable for the profits which they have made. . . . There
    " is one matter which is common to both these claims which, unless it is
    " established, appears to me to be fatal: It must be shown that in the
    " circumstances of the case it was the duty of the directors to obtain these
    " shares for their company."

    Later in his judgment he uses this language: —

    " But it is said that the profit realised by the directors on the sale of
    "the shares must be accounted for by them. That proposition involves that
    "on the 2nd October, when it was decided to acquire these shares, and at the
    "moment when they were acquired by the directors, the directors were
    "taking to themselves something which properly belonged to their com-
    "pany."

    Other portions of the judgment appear to indicate that upon this
    claim to profits, it is a good defence to show bona fides or absence
    of fraud on the part of the directors in the action which they took,
    or that their action was beneficial to the company, and the judgment
    ends thus: —

    " That being so, the only way in which these directors could secure that
    " benefit for their company was by putting up the money themselves. Once
    '' that decision is held to be a bona fide one, and fraud drops out of the case,
    '' it seems to me there is only one conclusion, namely, that the Appeal must
    " be dismissed with costs."

    My Lords, with all respect I think there is a misapprehension here.
    The rule of equity which insists on those who by use of a fiduciary
    position make a profit, being liable to account for that profit, in no
    way depends on fraud, or absence of bona fides; or upon such ques-
    tions or considerations as whether the profit would or should other-
    wise have gone to the Plaintiff, or whether the profiteer was under
    a duty to obtain the source of the profit for the Plaintiff, or whether
    he took a risk, or acted as he did for the benefit of the Plaintiff, or
    whether the Plaintiff has in fact been damaged or benefited by his
    action. The liability arises from the mere fact of a profit having, in
    the stated circumstances, been made. The profiteer, however honest
    and well-intentioned, cannot escape the risk of being called upon to
    account.

    The leading case of Keech v. Sandford (Sel. Ch. Ca. 61) is an
    illustration of the strictness of this rule of Equity in this regard, and
    of how far the rule is independent of these outside considerations.
    A lease of the profits of a market had been devised to a trustee for
    the benefit of an infant. A renewal on behalf of the infant was
    refused: it was absolutely unobtainable. The trustee, finding that
    it was impossible to get a renewal for the benefit of the infant, took
    a lease for his own benefit. His duty to obtain it for the infant was
    incapable of performance; nevertheless he was ordered to assign

    5 [10]

    the lease to the infant, upon the bare ground that if a trustee on the
    refusal to renew might have a lease for himself, few renewals would
    be made for the benefit of cestuis que trust. ' This may seem
    " hard," said Lord King, " that the trustee is the only person of all
    " mankind who might not have the lease, but it is very proper that
    " rule should be strictly pursued, and not in the least relaxed ".

    One other case in Equity may be referred to in this connection,
    viz., ex parte James (8 Ves. jun. 337) a decision of Lord Eldon's.
    That was a case of a purchase of a bankrupt's estate by the solicitor
    to the commission, and Lord Eldon (at p. 345) refers to the doctrine
    thus: —

    " The doctrine as to purchases by trustees, assignees, and persons having
    a confidential character, stands much more upon general principle than
    upon the circumstances of any individual case. It rests upon this, that
    the purchase is not permitted in any case, however honest the circum-
    stances, the general interests of justice requiring it to be destroyed in every
    instance, as no Court is equal to the examination and ascertainment of
    the truth in much the greater number of cases."

    Let me now consider whether the essential matters which the
    Plaintiff must prove, have been established in the present case.

    As to the profit being in fact made there can be no doubt. The
    shares were acquired at par and were sold three weeks later at
    a profit of £2 16s. 1d. per share.

    Did such of the first rive Respondents as acquired these very
    profitable
    shares acquire them by reason and in course of their
    office of directors of Regal? In my opinion, when the facts
    are examined and appreciated the answer can only be that they
    did. The actual allotment no doubt had to be made by themselves
    and Garton (or some of them) in their capacity as directors of
    Amalgamated; but this was merely an executive act, necessitated
    by the alteration of the scheme for the acquisition of the lease of
    the two cinemas for the sole benefit of Regal and its shareholders
    through Regal's shareholding in Amalgamated. That scheme
    could only be altered by or with the consent of the Regal Board.
    Consider what in fact took place on the 2nd October, 1935. The
    position immediately before that day is stated in Garton's letter
    of the 26th September, 1935. The directors were willing to
    guarantee the rent until the subscribed capital of Amalgamated
    reached £5,000; Regal was to control Amalgamated and own
    the whole of its share capital; with the consequence that
    the Regal shareholders would receive their proportion of the
    sale price of the two new cinemas. The Respondents then
    meet on the 2nd October, 1935. They have before them an offer
    to purchase the Regal cinema for £77,500, and the lease of the
    two cinemas for £15,000. The offer is accepted. The draft lease
    is approved; a resolution for its sealing is passed in anticipation of
    completion in five days. Some of those present, however, shy at
    giving guarantees, and accordingly the scheme is changed by the
    Regal directors in a vital respect. It is agreed that a guarantee shall
    be avoided, by the six Respondents bringing the subscribed capital
    up to £5,000. I will consider the evidence and the minute in a
    moment. The result of this change of scheme (which only the
    Regal directors could bring about) may not have been appreciated
    by them at the time; but its effect upon their company and its share-
    holders was striking. In the first place, Regal would no longer
    control Amalgamated, or own the whole of its share capital; the
    action of its directors had deprived it (acting through its share-
    holders in general meeting) of the power to acquire the shares.
    In the second place, the Regal shareholders would only receive
    a largely reduced proportion of the sale price of the two cinemas.
    The Kegal directors and Garton would receive the moneys of
    which the Regal shareholders were thus deprived. This vital
    alteration
    was brought about in the following circumstances (I

    [11] 6

    refer to the evidence of the Respondent Garton.) He was asked
    what was suggested when the guarantees were refused, and this is
    his answer:—

    " Mr. Gulliver said ' We must find it somehow. I am willing to find
    ' £500. Are you willing,' turning to the other four directors of Regal, ' to
    ' do the same? ' They expressed themselves as willing. He said, ' That
    ' makes £2,500 ', and he turned to me and said, ' Garton, you have been
    ' interested in Mr. Bentley's companies; will you come in to take £500?' I
    agreed to do so."

    Although this matter is recorded in the Amalgamated minutes, this
    was in fact a decision come to by the directors of
    Regal, and the
    subsequent allotment by the directors of Amalgamated was a mere
    carrying into effect of this decision of the Regal Board. The resolu-
    tion recorded in the Amalgamated minute runs thus—

    " After discussion it was resolved that the directors be invited to sub-
    " scribe for 500 shares each, and that such shares be allotted accordingly ".

    As I read that resolution, and my reading agrees with Carton's
    evidence, the invitation is to the directors of
    Regal, and is made for
    the purpose of effectuating the decision which the five directors of
    Regal had made, that each should take up 500 shares in Amal-
    gamated. The directors of Amalgamated were not conveying an
    " invitation " to themselves. That would be ridiculous. They were
    merely giving effect to the Regal directors' decision to provide
    £2,500 cash capital themselves, a decision which had been followed
    by a successful appeal by Gulliver to Garton to provide the balance.


    My Lords, I have no hesitation in coming to the conclusion
    upon the facts of this case, that these shares when acquired by the
    directors were acquired by reason, and only by reason, of the fact
    that they were directors of
    Regal, and in the course of their execu-
    tion of that office.

    It now remains to consider whether in acting as directors of
    Regal they stood in a fiduciary relationship to that company.
    Directors of a limited company are the creatures of Statute, and
    occupy a position peculiar to themselves. In some respects they
    resemble trustees, in others they do not. In some respects they
    resemble agents, in others they do not. In some respects they
    resemble managing partners, in others they do not. In the case of
    the Forest of Dean Coal Mining Co. (10 C.D. 450) a director was
    held not liable for omitting to recover promotion money which had
    been improperly paid on the formation of the company. He knew
    of the improper payment, but he was not appointed a director until
    a later date. It was held that although a trustee of settled property
    which included a debt would be liable for neglecting to sue for it, a
    director of a company was not a trustee of debts due to the com-
    pany and was not liable. I cite two passages from the judgment of
    Sir George Jessel, M.R.: —

    Directors have sometimes been called trustees, or commercial trustees,
    " and sometimes they have been called managing partners, it does not matter
    " what you call them so long as you understand what their true position is,
    " which is that they are really commercial men managing a trading concern
    " for the benefit of themselves and all the other shareholders in it."

    Later, after pointing out that traders have a discretion whether they
    shall sue for a debt, which discretion is not
    vested in trustees of a
    debt under a settlement, he says: —

    " Again, directors are called trustees. They are no doubt trustees of
    assets which have come into their hands, or which are under their control,
    but they are not trustees of a debt due to the company. ... A director
    is the managing partner of the concern, and although a debt is due to the
    concern I do not think it is right to call him a trustee of that debt which
    remains unpaid, though his liability in respect of it may in certain cases
    and in some respects be analogous to the liability of a trustee."

    The position of directors was considered by Kay, J., in the case of
    the Faure Electric Co. (40 C.D. 141). That was a case of directors

    7 [12]

    having applied the company's money in payment of an improper
    commission; a claim was made for the loss thereby occasioned to
    the company. In referring to the liability of directors, the learned
    judge pointed out that directors were not trustees in the sense of
    trustees of a settlement, that the nearest analogy to their position
    would be that of a managing agent of a mercantile house with large
    powers, but that there was no analogy which was absolutely per-
    fect; and he added: —

    " However, it is quite obvious that to apply to directors the strict rules
    " of the Court of Chancery with respect to ordinary trustees might fetter
    " their action to an extent which would be exceedingly disadvantageous to
    " the companies they represent."

    In addition a passage from the judgment of Bowen, L.J., in
    Imperial Hydropathic Co.
    v. Hampson (23 C.D. 1) may be usefully
    recalled. He says:

    " I should wish ... to begin by remarking this, that when persons
    " who are directors of a company are from time to time spoken of by judges
    " as agents, trustees, or managing partners of the company, it is essential
    " to recollect that such expressions are used not as exhaustive of the powers
    " or responsibilities of those persons, but only as indicating useful points
    '' of view from which they may for the moment, and for the particular pur-
    " pose, be considered—points of view at which for the moment they seem
    " to be either cutting the circle or falling within the category of the suggested
    " kind. It is not meant that they belong to the category, but that it is
    " useful for the purpose of the moment to observe that they fall pro tanto
    " within the principles which govern that particular class."

    These three cases, however, were not concerned with the ques-
    tion of directors making a profit; but that the equitable principle in
    this regard applies to directors is beyond doubt. In Parker
    v.
    McKenna
    (L.R. 10 Ch. 96), a new issue of shares of a joint stock
    bank was offered to the existing shareholders at a premium. The
    directors arranged with one Stock to take, at a larger premium, the
    shares not taken up by the existing shareholders. Stock, being
    unable to fulfil his contract, requested the directors to relieve him
    of some. They did so, and made a profit. They were held account-
    able for the profit so made. The Lord Chancellor (Lord Cairns)
    stated (at p. 118) that: —

    " The Court will not enquire, and is not in a position to ascertain,
    " whether the Bank has lost or not lost by the acts of the directors. All that
    ' the Court has to do is to examine whether a profit has been made by an
    ' agent, without the knowledge of his principal, in the course and execution
    ' of his agency, and the Court finds in my opinion that these agents in the
    ' course of their agency have made a profit, and for that profit they must
    ' in my opinion account to their principal."

    In the same case James, L.J., (at p. 124) stated his view in the
    following terms: —

    ' It appears to me very important that we should concur in laying down
    " again and again the general principle that in this Court, no agent in the
    " course of his agency, in the matter of his agency, can be allowed to make
    " any profit without the knowledge and consent of his principal, that that
    " rule is an inflexible rule, and must be applied inexorably by this Court,
    " which is not entitled in my judgment to receive evidence, or suggestion, or
    " argument, as to whether the principal did or did not suffer any injury in
    " fact, by reason of the dealing of the agent, for the safety of mankind
    " requires that no agent shall be able to put his principal to the danger of
    " such an enquiry as that."

    In the case of the Imperial Mercantile Credit Association v.
    Coleman
    (6 E. & I. App. 189) one Coleman, a stockbroker and a
    director of a financial company, had contracted to place a large
    amount of railway debentures for a commission of 5 per cent. He
    proposed that his company should undertake to place them for a
    commission of 1 1/2 per cent. The 5 per cent, commission was in due
    course paid to the director, who paid over the 1 1/2 per cent, to the

    [13] 8

    company. He was held liable to account for the 3 1/2 per cent., by
    Malins, V.C., who said (see 6 Ch. App. at p. 563): —

    " It is of the highest importance that it should be distinctly understood
    " that it is the duty of directors of companies to use their best exertions for
    " the benefit of those whose interests are committed to their charge, and that
    " they are bound to disregard their own private interests whenever a regard
    " to them conflicts with the proper discharge of such duty."-

    His decree was reversed by Lord Hatherley on the ground that the
    transaction was protected under the company's Articles of Associa-
    tion. Your Lordships' House, however, thought that in the circum-
    stances of the case the Articles of Association gave no protection,
    and restored the decree with unimportant
    variations. The liability
    was based on the view, which was not disputed by Lord Hatherley,
    that the director stood in a fiduciary relationship to the company.
    That relationship being established he could not keep the profit
    which had been earned by the funds of the company being em-
    ployed in taking up the debentures. The Courts in Scotland have
    treated directors as standing in a fiduciary relationship towards their
    company and, applying the equitable principle, have made them
    accountable for profits accruing to them in the course and by reason
    of their directorships. It will be sufficient to refer to the case of the
    Huntington Copper Co. v. Henderson (4 Rettie 294) in which the
    Lord President cites with approval the following passage from the
    Lord Ordinary's judgment: —

    " Whenever it can be shown that the trustee has so arranged matters as
    " to obtain an advantage, whether in money or in money's worth, to himself
    " personally through the execution of his trust, he will not be permitted to
    " retain it, but be compelled to make it over to his constituent."

    In the result I am of opinion that the directors standing in a
    fiduciary relationship to
    Regal in regard to the exercise of their
    powers as directors, and having obtained these shares by reason
    and only by reason of the fact that they were directors of Regal and
    in the course of the execution of that office, are accountable for the
    profits which they have made out of them. The equitable rule laid
    down in Keech v. Sandford, ex parte James and similar authorities
    applies to them in full force. It was contended that these cases were
    distinguishable by reason of the fact that it was impossible for
    Regal to get the snares owing to lack of funds, and that the directors
    in taking the shares were really acting as members of the public.
    I cannot accept this argument. It was impossible for the cestui
    quo trust
    in Keech v. Sandford to obtain the lease, nevertheless the
    trustee was accountable: and the suggestion that the directors were
    applying simply as members of the public is a travesty of the facts.
    They could, had they wished, have protected themselves by a
    resolution (either antecedent or subsequent) of the Regal share-
    holders in general meeting. In default of such approval, the
    liability to account must remain.

    The result is that in my opinion each of the Respondents Bobby,
    Griffiths, Bassett and Bentley is liable to account for the profit which
    he made on the sale of his 500 shares in Amalgamated.

    The case of the Respondent Gulliver, however, requires some
    further consideration, for he has raised a separate and distinct
    answer to the claim. He says—" I never promised to subscribe for
    " shares in Amalgamated. I never did so subscribe. I only promised
    " to find others who would be willing to subscribe. I only found
    " others who did subscribe. The shares were theirs; they were never
    " mine. They received the profit. I received none of it." If these
    are the true facts, his answer seems complete. The evidence in my
    opinion establishes his contention. Throughout his evidence
    Gulliver insisted that he only promised to find £500, not to sub-
    scribe it himself. The £500 was paid by two cheques in favour of


    9 [14]

    Amalgamated, one a cheque for £200 signed by Gulliver as director
    and on behalf of the Swiss company Seguliva, the other a cheque
    for £300 signed by Gulliver as managing director of South Downs
    Land Co., Ltd. They were enclosed in a letter of the 3rd October,
    1935, from Gulliver to Garton, in which Gulliver asks that the share
    certificates be issued as follows: 200 shares in the name of himself,
    Charles Gulliver, 200 shares in the name of South Downs Co., Ltd.,
    and
    100 shares in the name of Miss S. Geering. The money for
    Miss Geering's shares was apparently included in South Down
    Co.'s cheque. The certificates were made out accordingly, the 200
    shares in Gulliver's name being, he says, the shares subscribed for
    by the Swiss company.

    When the sale and purchase of the Amalgamated shares was
    arranged, the agreement for the sale and purchase was signed on
    behalf of the
    vendor shareholders (other than the Respondent Bent-
    ley) by Garton & Co.: and in a letter of the 17th October, 1935,
    Gulliver sent to Garton (who held the three certificates) three trans-
    fers, viz. (1) a transfer of 200 shares executed by South Downs
    Land Co., Ltd., (2) a transfer of 200 shares executed by himself,
    and (3) a transfer of 100 shares executed by Miss Geering. When
    the purchase money was paid cheques were drawn as follows: a
    cheque for £360 in favour of Miss Geering, a cheque for £720 in
    favour of South Downs Land Co., Ltd., and a cheque for the same
    amount in favour of Gulliver. By letter of the 24th October, 1935,
    written by Gulliver to the National Provincial Bank, these cheques
    were paid into the respective accounts of Miss Geering, South
    Downs Land Co., Ltd., and Seguliva, A.G.

    From the evidence of Gulliver it appeared that Miss Geering is a
    friend who from time to time makes investments on his advice;
    that the issued capital of South Downs Land Co., Ltd., is £1,000 in
    £1 shares, held by some 11 or 12 shareholders, of whom Gulliver is
    one and holds 100 shares; and that in the Swiss company Gulliver
    holds
    85 out of 500 shares.

    It is of the first importance on this part of the case to bear in
    mind that these directors have been acquitted of all suggestion of
    mala fides in regard to the acquisition of these shares. They had
    no reason to believe that they could be called to account. Why
    then should
    Gulliver go to the elaborate pains of having the shares
    put into the names of South Downs Co. and Miss Geering, and of
    having the proceeds of sale paid into the respective accounts before
    mentioned, if the shares and proceeds really belonged to him ?
    Ex hypothesi he had no reason for concealment; and no question
    was raised against the transaction until months after the proceeds
    of sale had been paid into the banking accounts of those whom
    Gulliver asserts to have been the owners of the shares. I can see no
    reason for doubting that the shares never belonged to Gulliver, and
    that he made no profit on the sale thereof.

    Counsel for the Appellant, however, contended that the trial
    judge had found as a fact that
    Gulliver was the owner of the shares;
    and he relied on certain scattered passages in the judgment, the
    strongest of which seems to me to be the one in which the learned
    Judge said—" I may say this with regard to Mr. Gulliver, that I
    " have not been misled in any way or led to decide in his favour by
    " the fact that he handed over his shares to his nominees, but rather
    " the reverse ". I cannot regard that as a finding by the judge that
    the shares were subscribed for by Gulliver under aliases, and that
    the shares and the proceeds of sale in fact belonged to him. It is
    equally susceptible of the meaning that he allowed others to sub-
    scribe for the shares which he could have obtained for himself had
    he so wished. But if it be claimed as a finding of fact in the former
    sense, all I can say is that there is no evidence which in my opinion
    would justify such a finding.

    [15] 10

    It was further argued that even if the shares and the proceeds
    of sale did not belong to
    Gulliver, he is nevertheless liable to account
    to Regal for the profit made by the owners of the shares, and that
    upon the authority of the case of the Liquidators of the Imperial
    Mercantile Credit Association v
    . Coleman, to which I have already
    referred. One of the contentions put forward there by Coleman
    was that his transaction was a transaction for the benefit of a part-
    nership in the profits of which he was only interested to the extent
    of a half, and that accordingly he could only be made accountable
    to that extent. That contention was disposed of by Lord Cairns
    in the following terms: —

    " My Lords, I think there is no foundation for this argument. The
    "profit on the transaction was obtained by Mr. Coleman, and in the view
    "that
    I take was obtained by him as a director of the Association. Whether
    "he desired ori whether he determined to reserve it all to himself or to share
    "it with his firm appears to me to be perfectly immaterial. The source from
    "which the profit is derived is Mr. Coleman. It is only through him that
    "his firm can claim. He is liable for the whole of the profits which were
    "obtained; and it is not the course for a Court of Equity to enter into the
    "consideration of what afterwards would have become of those profits."

    I am unable to see how this authority helps Regal if it be assumed
    that neither the shares nor the profit ever belonged to Gulliver.

    It was further said that Gulliver must account for whatever
    profits he may have made indirectly through his shareholding in
    the two companies, and that an enquiry should be directed for this
    purpose. As to this, it is sufficient to say that there is no evidence
    to ground such an enquiry. Indeed the evidence so far as it goes
    shows that neither company has distributed any part of the profit.

    Finally, it was said that Gulliver must account for the profit on
    the 200 shares as to which the certificate was in his name. But
    if in fact the shares belonged beneficially to the Swiss company
    (and that is the assumption for this purpose), the proceeds of sale
    did not belong to Gulliver, and were rightly paid into the Swiss
    company's banking account: Gulliver accordingly made no profit
    for which he is accountable.

    As regards Gulliver, this Appeal should in my opinion be dis-
    missed.

    There remains to consider the case of Garton. He stands on a
    different footing from the other Respondents in that he was not a
    director of
    Regal. He was Regal's legal adviser; but in my opinion
    he has a short but effective answer to the Plaintiffs' claim. He was
    requested by the Regal directors to apply for 500 shares. They
    arranged that they themselves should each be responsible for £500
    of the Amalgamated capital, and they appealed, by their chair-
    man, to Garton to subscribe the balance of £500 which was required
    to make up the £3,000. In law his action, which has resulted in a
    profit, was taken at the request of Regal, and I know of no principle
    or authority which would justify a decision that a solicitor must
    account for profit resulting from a transaction which he has entered
    into on his own behalf, not merely with the consent, but at the
    request of his client.

    My Lords, in my opinion the right way in which to deal with
    this Appeal is (1) to dismiss the Appeal as against the Respondents
    Gulliver and Garton with costs, (2) to allow it with costs as against
    the other four Respondents, and (3) to enter judgment as against
    each of these four Respondents for a sum of £1,402 1s. 8d. with
    interest at 4 per cent, from the 25th October, 1935, as to £1,300
    part thereof, and from, the 5th December, 1935, as to the balance.
    As regards the liability of these four Respondents for costs, I have
    read the shorthand notes of the evidence at the trial, and it is clear

    11 [16]

    to me that the costs were substantially increased by the sugges-
    tions of mala fides and fraud with which the cross-examination
    abounds, and from which they have been exonerated. In my
    opinion a proper order to make would be to order these four
    Respondents to pay only three-quarters of the Appellants' taxed
    costs of action. The taxed costs of the Appellants in the Court
    of Appeal and in this House they must pay in full.

    One final observation I desire to make. In his judgment the
    Master of the Rolls stated that a decision adverse to the directors
    in the present case involved the proposition that if directors bona
    fide
    decide not to invest their company's funds in some proposed
    investment, a director who thereafter embarks his own money
    therein is accountable for any profits which he may derive there-
    from. As to this, I can only say that to my mind the facts
    of this hypothetical case bear but little resemblance to the story
    with which we have had to deal.

    Viscount

    Sankey

    Lord

    Russell of
    Killowen

    Lord
    Macmillan

    Lord
    Wright

    Lord
    Porter

    [17]

    REGAL (HASTINGS), LIMITED

    v.

    GULLIVER AND OTHERS.
    Lord Macmillan

    MY LORDS,

    The real question for decision in this Appeal seems unfortunately
    to have been somewhat obscured by the course of the arguments
    before the trial judge and to some extent also in the Court of
    Appeal.

    The issue as it was formulated before your Lordships was not
    whether the directors of
    Regal (Hastings) Limited had acted in
    bad faith. Their bona fides was not questioned. Nor was it
    whether they had acted in breach of their duty. They were not
    said to have done anything wrong. The sole ground on which it
    was sought to render them accountable was that, being directors
    of the plaintiff company and therefore in a fiduciary relation to it,
    they entered in the course of their management into a transaction
    in which they utilised the position and knowledge possessed by them
    in virtue of their office as directors, and that the transaction re-
    sulted in a profit to themselves. The point was not whether the
    directors had a duty to acquire the shares in question for the com-
    pany and failed in that duty. They had no such duty. We must
    take it that they entered into the transaction lawfully, in good faith
    and indeed avowedly in the interests of the company. But that
    does not absolve them from accountability for any profit which they
    made if it was by reason and in virtue of their fiduciary office as
    directors that they entered into the transaction.

    The equitable doctrine invoked is one of the most deeply rooted
    in pur law. It is amply illustrated in the authoritative decisions
    whicli my noble and learned friend Lord Russell of Killowen has
    cited. I should like only to add a passage from Lord Kames's
    " Principles of Equity," which puts the whole matter in a sentence :
    " Equity,' he says, " prohibits a trustee from making any profit by
    " his management, directly or indirectly." (3rd edition, 1778,
    Vol. II, p. 87.)

    The issue thus becomes one of fact. The plaintiff company has
    to establish two things: (1) That what the directors did was so
    related to the affairs of the company that it can properly be said to
    have been done in the course of their management and in utilisation
    of their opportunities and special knowledge as directors; and
    (2) that what they did resulted in a profit to themselves. The first
    of these propositions is clearly established by the analysis of the
    whole complicated circumstances for which the House is indebted
    to my noble and learned friend who has preceded me. The second
    proposition is admitted, except in the case of Mr.
    Gulliver, in whose
    case I agree that on the evidence he is not proved to have made any
    profit personally. The conditions are therefore in my opinion
    present which preclude the four directors who made a personal
    profit by the transaction from retaining such profit.

    The position of the Respondent Mr. Garton is quite different. He
    was the solicitor of the plaintiff company and in no sense a trustee
    for it. True, he made a profit, as did the four directors, but he sub-
    scribed for his shares not only with the knowledge but at the ex-
    press request of his clients, and I know of no principle on which he
    could be held accountable to them for any resultant profit to
    himself.

    I should have been content simply to express my concurrence
    with the
    views expounded by my noble and learned friend Lord
    Russell of Killowen, with which I wholly agree, but for the fact that
    we are differing from the Court of Appeal. For that reason I have
    thought it proper to state briefly the grounds of my concurrence.

    Viscount

    Sankey

    Lord
    Russell of

    Killowen

    Lord

    Macmillan

    Lord
    Wright

    Lord
    Porter

    [18]

    REGAL (HASTINGS), LIMITED
    v.

    GULLIVER AND OTHERS.

    Lord Wright

    MY LORDS,

    Of the six Respondents, two, Gulliver and Garton, stand on a
    different footing from the other four. It is in regard to the latter
    that the important question of principle brought into issue by
    the decisions of Wrottesley J. and the Court of Appeal call for
    determination. That question can be briefly stated to be whether
    an agent, a director, a trustee or other person in an analogous
    fiduciary position, when a demand is made upon him by the person
    to whom he stands in the fiduciary relationship to account for
    profits acquired by him by reason of his fiduciary position and by
    reason of the opportunity and the knowledge, or either, resulting
    from it, is entitled to defeat the claim upon any ground save that he
    made the profits with the knowledge and assent of the other person.
    The most usual and typical case of this nature is that of principal
    and agent. The rule in such cases is compendiously expressed to be
    that an agent must account for net profits secretly (that is without
    the knowledge of his principal) acquired by him in the course of
    his agency. The authorities show how manifold and various are
    the applications of the rule. It does not depend on fraud or cor-
    ruption.

    The Courts below have held that it does not apply in the present
    case for the reason that the purchase of the shares by the Respon-
    dents, though made for their own advantage, and though the
    knowledge and opportunity which enabled them to take the
    advantage came to them solely by reason of their being directors
    of the Appellant Company, was a purchase which in the
    circumstances the Respondents were under no duty to
    the Appellants to make, and was a purchase which it was
    beyond the Appellant's ability to make, so that if the Respon-
    dents had not made it, the Appellant would have been no
    better off by reason of the Respondents abstaining from reaping
    the advantage for themselves. With the question so stated it was
    said that any other decision than that of the Courts below would
    involve a dog-in-the-manger policy. What the Respondents did,
    it was said, caused no damage to the Appellant, and involved no
    neglect of the Appellant's interests or similar breach of duty. But
    I think the answer to this reasoning is that both in law and equity
    it has been held that if a person in a fiduciary relationship makes
    a secret profit cut of the relationship, the Court will not enquire
    whether the other person is damnified or has lost a profit which
    otherwise he would have got. The fact is in itself a fundamental
    breach of the fiduciary relationship. Nor can the Court adequately
    investigate the matter in most cases. The facts are generally difficult
    to ascertain or are solely in the knowledge of the person who is being
    charged. They are matters of surmise; they are hypothetical
    because the enquiry is as to what would have been the position
    if that party had not acted as he did, or what he might have done
    if there had not been the temptation to seek his own advantage,
    if in short interest had not conflicted with duty. Thus in Keech v.
    Sandford,
    Cases Ch., Temp. King, a case in which the fiduciary
    relationship was that of trustee and cestui que trust, the trustee
    was held liable to convey a lease to the infant cestui que trust,
    though the lessor had refused to renew to the infant. Lord
    Chancellor King said, " This may seem hard that the trustee is the
    " only person of all mankind who might not have the lease." It did


    [19] 2

    not matter that the infant could not himself have got it and that
    he was not damaged by the trustee taking it for himself. One
    reason why the rule is strictly pursued is given by Lord Eldon in
    ex p. James, 8 Ves. Jun. 337, " no Court is equal to the examination
    " and ascertainment of the truth in much the greater number of
    " cases." In Parker v. McKenna, L.R. 10 Ch. 96, a most instructive
    case, the rule is so admirably stated by James L.J. that I cannot
    resist repealing his language, though my noble and learned friend
    Lord Russell of Killowen in his speech just delivered, which I have
    had the opportunity of reading in print and with which I agree
    completely, has already quoted it to your Lordships. The words of
    the Lord Justice which I emphasise are " that that rule is an in-
    " flexible rule, and must be applied inexorably by this Court, which
    " is not entitled to receive evidence or suggestion or argument as
    " to whether the principal did or did not suffer an injury in fact
    " by reason of the dealing of the agent, for the safety of mankind
    " requires that no agent shall be able to put his principal to the
    " danger of such an enquiry as that." The italics are mine. I
    need not multiply citations to the same effect, or illustrations of
    the different circumstances in which the rule has been applied.

    In the present case the four Respondents were acting in the
    matter as agents for the Appellant Company in their capacity of
    directors, that is " as commercial men managing a trading concern
    " for the benefit of themselves and all other shareholders in it" if I
    may borrow that part of the description applied to directors by
    Sir George Jessel M.R., in Forest of Dean Coal Mining Co., 10 Ch.
    D. 450 at p. 452. In the numerous actions, or most of them,
    which have been brought against directors of companies for
    profits secretly (that is without the assent of the shareholders)
    secured in the course of their dealing as directors, the claims
    have been against them in their capacity as agents. Thus,
    to take a familiar instance, in Boston Deep Sea Fishing and
    Ice Company
    v. Ansell, 39 Ch. D. 339, the Defendant was
    held liable to account to the Plaintiff Company of which he was
    director for secret bribes or bonuses which he had received from
    persons making contracts with the Company. The Defendant's
    liability flowed from the fiduciary relationship in which he stood
    to the Company as its agent. Bowen L.J. said at p. 367, " The
    ' law implies a use, that is, there is an implied contract, if you put
    ' it as a legal proposition—there is an equitable right, if you treat it
    ' as a matter of equity—as between the principal and agent that
    ' the agent should pay it over, which renders the agent liable to
    ' be sued for money had and received, and there is an equitable
    ' right in the master to receive it and to take it out of the hands of
    ' the agent, which gives the principal a right to relief in equity." But
    as it was held in Lister v. Stubbs, 45 Ch. D. 1, the relationship in
    such a case is that of debtor and creditor, not trustee and cestui que
    trust.
    Many instances can be quoted from the books of the
    stringency with which the Courts have enforced the rule that a
    director must account to his Company for any benefit which he
    obtains in the course of and owing to his directorship, even though
    the benefit comes from a third person and involves no loss to the
    Company. I cite as one example Archer's case, 1892 1 Ch. D. 322,
    where a director was held liable to account to the Company for
    the sum paid to him by the promoter of the Company by way of
    indemnity against the money which the director had to pay for his
    qualification shares.

    The analysis of the facts in the present case which has been
    made by Lord Russell of Killowen shows clearly enough
    that the opportunity and the knowledge which enabled the
    four Respondents to purchase the shares came to them
    simply in their position as directors of the Appellant Com-
    pany. Wrottesley J. clearly so held. He said at the outset

    3 [20]

    of his judgment, "There is no doubt they (the Respondents)
    ' did take up in their own names shares which only after
    ' a few days and certainly only after a week or two they were
    ' able to sell at a
    very large profit indeed. There is no doubt that it
    ' was only because they were directors and solicitor respectively of
    ' the Plaintiff Company that this stroke of fortune came in their
    ' way." But he decided against the Appellant Company because he
    fixed his attention on his view that the Appellant suffered no loss by
    the Respondents' conduct, instead of fixing attention on the crucial
    fact that the Respondents made a secret profit out of their agency.
    I do not think that any different view was taken on this aspect of
    the case by the Court of Appeal, or that it was questioned by that
    Court that the opportunity of making the profits came to the four
    Respondents by reason of their fiduciary position as directors.
    But the Court of Appeal held that in the absence of any dishonest
    intention or negligence or breach of a specific duty to acquire
    the shares for the Appellant Company, the Respondents as
    directors were entitled to buy the shares themselves. Once, it was
    said, they came to a bona fide decision that the Appellant Com-
    pany could not provide the money to take up the shares, their
    obligation to refrain from acquiring those shares for themselves
    came to an end. But with the greatest respect, I feel bound to
    regard such a conclusion as dead in the teeth of the wise and salut-
    ary rule so stringently enforced in the authorities. It is sug-
    gested that it would have been mere quixotic folly for the four
    Respondents to let such an occasion pass when the Appellant
    Company could not avail itself of it. But Lord Chancellor King
    faced that very position when he accepted that the person in the
    fiduciary position might be the only person in the world who could
    not avail himself of the opportunity. It is, however, not true that
    such a person is absolutely barred, because he could by obtaining
    the assent of the shareholders have secured his freedom to make the
    profit for himself. Failing that the only course open is to let the
    opportunity pass. To admit of any other alternative would be
    to expose the principal to the dangers against which James L.J.
    in the passage I have quoted, uttered his solemn warning. The
    rule is stringent and absolute because " the safety of mankind "
    requires it to be absolutely observed in the fiduciary relationship.

    In my opinion the Appeal should be allowed in the case of
    the four Respondents.

    In the case of the other two Respondents, I agree with Lord
    Russell of Killowen that the appeal should be dismissed for the
    several reasons which he has given in regard to each of them. These
    appeals turn on issues of evidence and fact, and I do not desire to
    add to what has fallen from my noble and learned friend.

    Viscount
    Sankey

    Lord

    Russell of
    Killowen

    Lord
    Macmillan

    Lord
    Wright

    Lord
    Porter

    [21]

    REGAL (HASTINGS), LIMITED,

    v.
    GULLIVER AND OTHERS.

    Lord Porter

    MY LORDS,

    I have had an opportunity of reading the speech which has been
    delivered by my noble and learned friend, Lord Russell of
    Killowen and had we not been differing from the view of the Court
    of Appeal I should not desire to add to what he has said. But as
    we are reversing the judgment of both the Court of first instance
    and the Court of Appeal I desire, out of respect for the opinions
    expressed in them, to state in the briefest possible compass the
    grounds for the view which I hold.

    My Lords, I am conscious of certain possibilities which are in-
    volved in the conclusion which all your Lordships have reached.
    The action is brought by the Regal Company. Technically, of
    course, the fact that an unlooked-for advantage may be gained
    by the shareholders of that Company is immaterial to the question
    at issue: the company and its shareholders are separate entities.
    But one cannot help remembering that in fact the shares have
    been purchased by a financial group who were willing to acquire
    those of the Regal and the Amalgamated at a certain price. As
    a result of your Lordships' decision that group will, I think, receive
    in one hand part of the sum which has been paid by the other.
    For the shares in Amalgamated they paid £3 16s. 1d. per share,
    yet part of that sum may be returned to the group, though not
    necessarily to the individual shareholders, by reason of the
    enhancement in value of the shares in Regal:—an enhancement
    brought about as a result of the receipt by the Company of the
    profit made by some of its former directors on the sale of Amal-
    gamated shares. This, it seems, may be an unexpected windfall, but
    whether it be so or not, the principle that a person occupying a fidu-
    ciary relationship shall not make a profit by reason thereof is of such
    vital importance that the possible consequence in the present case
    is in fact, as it is in law, an immaterial consideration.

    The Plaintiff, the Regal Company, by its pleadings claimed
    (1) damages for negligence, (2) alternatively the profit obtained on
    the sale of the shares in Amalgamated as money had and received
    by the Defendants to the Plaintiffs' use, and (3) in the further
    alternative damages for misfeasance. No claim for fraud was
    suggested, and the learned judge at the trial expressly exonerated
    the Defendants from any liability for negligence or misfeasance.
    Before your Lordships' House the claim for money had and
    received was alone persisted in.

    The alternative claim for misfeasance, however, seems also to
    have been presented to the Court of Appeal, but to have been
    rejected by them, and in common with the rest of your Lordships
    I unreservedly accept the findings of both Courts.

    It remains, therefore, to consider the claim that (in the words of
    the Master of the Rolls) " in. the circumstances of the case the
    " directors must be taken to have been acting in the matter of their
    " office when they took those shares and that, accordingly, they are
    " accountable for the profits which they have made ". That the
    shares were obtained by the Defendants by reason of their position
    as directors of
    Regal is, I think, plain. The original proposition,
    when the formation of the subsidiary company was suggested, was
    that the whole of the shares should be issued to the Regal Com-
    pany partly for cash and partly for services rendered, and this

    2 [22]

    proposition was discussed and accepted at board meetings of that
    company. It was only afterwards when the necessity for finding
    £5,000 cash arose that the issue to any one other than the company
    was considered, and then the directors turned to themselves,
    " There is no doubt it was only because they were directors and
    " solicitor respectively of the Plaintiff company that this stroke of
    " fortune came their way," says the learned judge, and I agree with
    his observation.

    In these circumstances it is to my mind immaterial that the
    directors saw no way of raising the money save from amongst
    themselves and from the solicitor to the company, or indeed that
    the money could in fact have been raised in no other way. The
    legal proposition may, I think, be broadly stated by saying that one
    occupying a position of trust must not make a profit which he can
    acquire only by use of his fiduciary position, or if he does he
    must account for the profit so made. For this proposition the cases
    of Keech
    v. Sandford (1726), Sel. Cas. Temp. King. 61, and exparte
    James
    (1803) 8 Ves. jun. 337 are sufficient authority.

    The learned Judge and the members of the Court of Appeal
    appear to have adopted a narrower outlook with which, with all
    respect, I find myself unable to agree. " In order to succeed the
    " Plaintiff company must show that the Defendants both ought to
    " have caused and could have caused the Plaintiff company to sub-
    " scribe for these shares and that the neglect to do so caused a loss
    " to the Plaintiff company " are the words used by the learned
    Judge.

    " It must be shown," says the Master of the Rolls, " that in the
    " circumstances of the case it was the duty of the directors to obtain
    " these shares for their company ".

    And, again, " The position of the Regal Company would have
    ' been very much strengthened by having all these shares in the
    ' two companies in the same hands with the possibility of one
    ' control. That being so, the only way in which these directors
    ' could secure that benefit for their company was by putting up the
    ' money themselves. Once that decision is held to be a bona fide
    '
    one, and fraud drops out of the case, it seems to me there is only
    ' one conclusion, namely, that the Appeal must be dismissed with
    ' costs."

    To treat the problem in this way is, in my view, to look at it
    as involving a claim for negligence or misfeasance and to neglect
    the wider aspect. Directors, no doubt, are not trustees, but they
    occupy a fiduciary position towards the company whose board
    they form. Their liability in this respect does not depend upon
    breach of duty but upon the proposition that a director must not
    make a profit out of property acquired by reason of his relationship
    to the company of which he is director. It matters not that he
    could not have acquired the property for the company itself—the
    profit which he makes is the company's, even though the property
    by means of which he made it was not and could not have, been
    acquired on its behalf. Adopting the words of Lord Eldon in
    ex parte James (supra), " the general interests of justice require it,
    " as no Court is equal to the examination and ascertainment of the
    " truth in much the greater number of cases."

    My Lords, these observations apply generally to the action, but
    the cases of
    Gulliver and Garton stand on a somewhat different
    footing. As to them, there are additional and special considera-
    tions to be kept in mind. I need not set them out or refer to them
    further than by saying that I find myself in agreement with the
    reasoning and conclusion of my noble and learned friend, Lord
    Russell of Killowen, and would submit with him that the Appeal
    should be allowed so far as concerns the Defendants Bobby,
    Griffiths, Bassert and Bentley and should be dismissed in the case
    of Gulliver and Garton. I also concur in the order as to costs
    which he suggests.



    (18679r) Wt. — 16 4/42 D.L. G. 338


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