Lords Design Constraints
| Date | 01 May 1996 |
| Author | Lionel Bently |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02091.x |
| Published date | 01 May 1996 |
May
19961
Lords
Design
Constraints
Lord Hoffmann’s recommendation that accessory liability for a breach of trust
should
be
brought within the
Lumley
v
GyeW
t01-t.~’
7.
Royal Brunei Airlines
is notable for the failure to give separate consideration
to those trusts and fiduciary duties9* which form part of a primarily contractual
relationship. Barely two months after the Privy Council’s advice was delivered,
Lord Browne-Wilkinson warned, in
Target Holdings Ltd
v
red fern^?^
that trusts
would
be
rendered commercially useless if
the
detailed rules developed for
traditional trusts were applied wholesale to
the
trusts of a quite different kind
which are used in commercial transactions.
In
Royal Brunei Airlines,
there was no
consideration of which is the more appropriate principle to govern accessory
liability in the case of a technical trust put into a commercial contract” purely
as
a
device to protect one party against the credit risk of the other. Should it
be
the
same principle which governs accessory liability in the case of a traditional trust
where there is no underlying contract
between
trustee and beneficiary?
Or
should
the basic contractual relationship be recognised by adopting the
Lumley
v
Gye
principle governing liability for inducing a breach
of
contract?
Lords Design Constraints
Lionel
gently*
Representations
of
things
In
The
Commodity Culture
of
Victorian England,
Thomas Richards describes how,
during
the
middle
of
the nineteenth century, commodities took centre stage in
English public life and at the same time acquired a distinct ideology: things came to
be
represented
as
autonomous.
’
For
Richards, the key moment in the development
of this way of representing things was the Great Exhibition of
1851.
In
Paxton’s
giant greenhouse in Hyde Park, tens of thousands of manufactured objects were
presented as ‘autonomous icons ordered into taxonomies, set on pedestals and
flooded with light.’* Each thing was displayed separately, free to
be
admired in
90 (1853) 2
E&B
216. See further n81 above.
91
This
is
part of a larger issue about the linkages between tort duties and equitable duties: see Rickett
(1996) I12 LQR 27. but note McLachlin
J’s
judgment
in
Canson Enterprises
v
Boughron,
85 DLR
(4th) 129, 154-164.
A
different aspect is the liability of
an
accessory to a transaction (eg by a local
authority) which is void
or
objectionable in public law.
92 As to fiduciary duties having a contractual base, see
Kelly
v
Cooper
[I9931 AC 205; and Part
111
of the
Law Commission’s Report, ‘Fiduciary Duties and Regulatory Rules’ (Law Com
No
236).
93 [I9951 3 WLR 352, 362.
94
Or
a
Quistclose
trust arising from a covenant
with
a provider of funds to use those funds only for
a
particular purpose:
Carreras Rothmuns
v
Freeman Mathews Treasure
[
19851 Ch 207.
*Lecturer in Law, King’s College, London.
My thanks
go
to
Robert Burrell and
Adam
Tomkins.
1
Prior
to this
period
things had been perceived
as
trivial and primarily
as
the
result of human activity.
Richards,
The Commodity Culture
of
Victorian
Englond:
Advertising
and
Spectacle, 1851-1914
(London: Verso,
1991)
p59.
2
ibid
p4.
0
The
Modem
Law
Review
Limited
1996
453
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