Rawlings: Delineating Wales: Constitutional, Legal and Administrative Aspects of National Devolution
| Published date | 01 November 2004 |
| Date | 01 November 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.522_5.x |
REVIEWS
W|lliam Swadling (ed),The Quistclose Tr u st : C r it i c a l E ss ay s ,Oxford: Hart
Publishing, 2004, xxiii þ185 p p, h b d30.00.
This book is a collection of nine papersaddressing particularaspects of the Quist-
close trust. In an area where debate has recently been rekindled following the
House of Lords’ opinion inTwinsectra vYa r d l e y [2002]2 AC 164 and RobertCham-
bers’ 1997 book ResultingTrusts, the essays are certainly welcome additions to the
literature.
Robert Stevens sets the scene with a short but highly informative account of
the events preceding the original Quistclose case. It is both well-researched and a
good read, but is clearly intended to stand apart from the rest of the book as a
historical report rather than as a critical essay. W|lliam Swadling’s own paper,
‘Orthodoxy’, follows: one of its targets is Lord W|lberforce’s construction of the
Quistclose deviceas a primary trust for creditors,followed if necessary by a second-
ary trust for thelender. Swadling also tries toundermine attempts by Chambers
and Lord Millett toreconcile the Quistclose trust with orthodoxy. In my viewthis
is only partly successful. Swadling convincingly demolishes W|lberforce’s pri-
mary/secondary construction, and shows thatChambers’speci¢c Quistclose theory
is not appropriate to all Quistclose cases. Both of those theories, however, had
already been rejected by Lord Millett, and where Swadling faces real di⁄culties
is in questioning Millett’s own model.
One problem here is that Swadling spends so much time on Lord W|lberforce’s
theory that the attempt to undermine Lord Millett’s model is both too brief and
su¡ers from bei ngco nducted through the same analytica l frameworkas t he attack
on W|lberforce’s theory. So although Swadling expressly recognises that Millett’s
model is not the same as a‘primarytrust for the lender’, he does not go on to treat
the two su⁄ciently distinctly: arguments against Lord Millett inTw i n s e c t r a have to
be teased apart from those relating to LordW|lberforce in Quistclose.And Swadling
does not attack Lord Millett on what might be his weakest £ank. Havingestab-
lished that the trust is not one of the common consensual trusts, Swadling to dis-
cuss not-consent trusts and concludes that the Quistclose trust does not ¢t easily
into this category either. That may be so, but in Twinsectra Millett puts some
weight on Chambers’ general theory of resulting trusts arising because the trans -
feror does not intend to bene¢t the recipient. As James Penner suggests i n the
third chapter, this might yet prove to be a weak foundation, and Swadling cer-
tainly needs to engage with this debate.
There are other questions about Swadling’s account. First, as part of his criti-
cism of Millett’s model, Swadling notes ‘the inappropriateness of the ¢duciary
label in a purely commercial, arms-length context’ (p 28).Yet whether or not the
label is indeed unsuitable can be doubted, especially given that ¢duciary obliga-
tions are£exible. As LordMustill said in Re Goldcorp Exchange Ltd [1995]1 AC 74 at
98,‘[t]o describe someone as a ¢duciary, without more, is meaningless’. It would
be wrong to say that all ¢duciaries always owe the same duties, so it is also mis-
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2004) 67(6)MLR 1032^1045
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