Repairing the English Civil Law of Bribery: Fixing Johnson v FirstRand Bank Ltd [2024] EWCA Civ 1282

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Cited authorities (8)

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Pages	75-95
Date	01 April 2025
Published date	01 April 2025
Author	Rivu Chowdhury,George Beglan

Repairing the English Civil Law of Bribery

Cambridge Law Review

(2025) Vol 10, Issue 1, 75–95

Repairing the English Civil Law of Bribery: Fixing

Johnson v FirstRand Bank Ltd

[2024] EWCA Civ

1282

RIVU CHOWDHURY AND GEORGE BEGLAN

ABSTRACT

The recent Court of Appeal decision of

Johnson v FirstRand Bank Ltd

(‘

FirstRand

’) held

that a car dealer acting as a broker between a consumer and a lender for car finance will be

under a ‘disinterested duty’ and a fiduciary duty. If the lender has p aid a ‘secret’ or partially

disclosed commission to the dealer, the dealer will be liable under the tort of bribery or for a

breach of fiduciary duty. The lender will also be liable primarily under the tort of bribery or

as an accessory to a breach of fiduciary duty. This result has shocked the car finance industry,

lenders, and banks. It is submitted that there are issues in the reasoning of

FirstRand

and that

this is because of deficiencies in the law of bribery itself. Conflicting authorities and incoherent

differences between the common law and equitable action have resulted in a widening of civil

liability to an unjustified degree. We examine the history of the law of bribery and the reason-

ing in

FirstRand

, and we suggest more careful analysis of fiduciary duties and more careful

application of accessory liability. We also propose subsuming the common law action into

the equitable one. This reform, alongside improved legal analysis of the duties and accessory

liability, is more in line with the economic realities of brokerage and is better for consumers

as it reduces the likelihood of price increases and facilitates the availability of finance. It is also

more desirable from the perspectives of coherence between common law and equity, as the

law should not have two answers to one question.

Keywords: law of bribery, equity, tort, fiduciary duties, lending

I. INTRODUCTION

The English law of bribery is complex and wide. The payment and receipt of a bribe will

attract criminal liability at common law and under statute.

It will also attract civil liability under

 LLM Candidate, University College London, BA (Oxon). We are grateful to Ruby Sanders-English, Eben MacDonald,

and an anonymous reviewer for their comments on our earlier drafts. Any errors that remain are our ow n.

 LLM (Durham), BA (Oxon).

See Bribery Act 2010. For a detailed treatment, see also Richard L issack and Fiona Horlick,

Lissack and Horlick on

Bribery and Corruption

(3rd edn, LexisNexis 2020). The criminal law of bribery is complex and beyond the scope of

this article.

Cambridge Law Review (2025) Vol 10, Issue 1

both the tort of bribery

and as a breach of fiduciary duty.

Actions are available against both

bribe-givers

and bribe-takers ,

and bribes include secret commissions.

Secret commiss ions

are unauthorised payments that an agent or fiduciary receives from a third party. The issue of

civil liability arose recently when the Court of Appeal handed down its decision in three com-

bined appeals

in the case of

Johnson v FirstRand Bank Ltd

(‘

FirstRand’

The case con-

cerned secret and half-secret commissions given by lenders to car dealers who acted as credit

brokers for consumers. It was held that the brokers had breached their ‘disinterested’ duty

and fiduciary duty owed to the consumers and that, essentially, customers were mis-sold fi-

nance. The case has sent shockwaves through the motor finance industry, impac ting broker-

ages,

car manufacturers,

and banks, and encouraging consumer claims.

The cause of

concern is that, in the short term, both car dealers and lenders will be exposed to significant

liability (Lloyd’s Banking Group have set aside £1.1 billion so far to cover claims

) and that,

in the long term, car finance will become more expensive. The impact of the case is not

limited to the motor finance industry and applies to all credit brokers as most brokers operate

on a commission model which is usually secret or half-secret.

Given the wide and significant

impact of the case, the UK Supreme Court has granted permission to appeal,

and the case

and the law of bribery are ripe for review.

While the result of the case is defensible, the reasoning is, in the authors’ view, defi-

cient. We argue that the issues in the case arise from confusion and difficulties between the

tort of bribery and a breach of fiduciary duty, conflicting authorities, and the lack of explana-

tion as to why a fiduciary duty and disinterested duty are imposed. We propose that the com-

mon law action should be subsumed into the equitable one and that the disinterested duty

can and should be viewed as a fiduciary duty. We also put forward a better explanation of

why a fiduciary can be imposed in the case itself. This is a better result as a matter of principle,

T Mahesan v Malaysia Government Officers’ Co-Operative Housing Society Ltd

[1979] AC 374 (PC) 383. See Section

II(B)(ii) below.

FHR European Ventures LLP v Cedar Capital Partners LLC

[2014] UKSC 45, [2015] AC 520 [7]. See Section II(A)

below.

Mahesan

(n 2) (common law);

FHR European Ventures

(n 3) (equity).

See for example

Johnson v FirstRand Bank Ltd

[2024] EWCA Civ 1282

[124] (equity);

Group Seven Ltd v Nasir

[2019] EWCA Civ 614, [2020] Ch 129 [110] (equity);

Mahesan

(n 2) (common law). See Section II below for a detailed

account.

Hurstanger Ltd v Wilson

[2007] EWCA Civ 299, [2007] 1 WLR 2351 [39];

Industries and General Mortgage Co Ltd

v Lewis

[1949] 2 All ER 573 (KB) 575 (Slade J) (‘bribe means the payment of a secret commission ’).

FirstRand

(n 5).

See Jack Williams, ‘Close Brothers Stops Underwriting New Dealer Finance after Landmark Court Ruling’ (

Car

Dealer

, 25 October 2024)

nance-after-landmark-court-ruling/309297> accessed 15 December 2024.

Michael Bow and Matt Oliver, ‘Car Deliveries Halted amid Fears Motor Finance Scandal Is “Bigger than PPI”’

The

Telegraph

(London, 31 October 2024)

tor-finance-scandal> accessed 15 December 2024.

See for example Stephen Fairclough, ‘Motorists Who Bought Cars on Finance Could Share in Billions’ (

BBC News

11 November 2024) accessed 15 December 2024; Kalyeena Makortoff,

‘Claims Management C ompanies Circle after UK Court Ruling on Mis-sold Car Finance’

The Guardian

(London, 9

December 2024 uk-claims-management-consumer-

compensation> accessed 15 December 2024.

Ben Martin, ‘Lloyds Banking’s Bill for Possible Car Loan Misselling Rises to £1.1bn’

The Times

(London, 20 Febru-

ary 2025)

rises-to-11bn-wblvgsv6h> accessed 11 February 2025.

Larry Harris,

Trading and Exchanges: Market Microstructure for Practitioners

(OUP 2003) ch 5.

‘Announcement from the UK Supreme C ourt’ (

UK Supreme Court

, 11 December 2024)

premecourt.uk/news/uksc-announcement-1> accessed 15 December 2024. See

Wrench v FirstRand Bank

(UKSC

2024/0159);

Johnson v FirstRand Bank

(UKSC 2024/0158);

Hopcraft v Close Brothers

(UKSC 2024/0157).

Repairing the English Civil Law of Bribery

as the law should not have two answers to the same question on liability for bribes. Equity also

has stricter requirements for accessory liability, which limits exposure to lenders. Both the

result and the ultimate reasoning of the case can, therefore, be res cued. A separate issue is

whether it should be rescued at all. We argue that it should, as an ad hoc fiduciary duty will

only arise where parties have made consensual undertakings to that effect.

This article will, first, give a background on the law of secret commissions and bribery;

secondly, it will detail and explain the reasoning in

FirstRand

; thirdly, it will highlight the flaws

in the reasoning of the case; fourthly, it will offer suggestions on how to reform the law of

bribery and provide a justification for the imposition of a fiduciary duty; and finally, it will

discuss whether a fiduciary duty should be imposed as a matter of policy.

II. THE LAW OF SECRET COMMISSIONS AND BRIBERY

There are actions for bribes and secret commissions at common law

and in equity.

A bribe

consists of any ‘commission or other inducement, which is given by a third party to an agent

[or other fiduciary] and which is secret from his principal’.

A secret commission is best

viewed as part of a fiduciary’s ‘no conflict’ and ‘no profit’ rule.

By accepting the secret com-

mission, the fiduciary has placed themselves in a position that conflicts with their fiduciary

duty or has made unauthorised profit as a result of their fiduciary pos ition which is why they

are liable to account to their principal. Secret commissions thus fall under the definition of

bribes, and the terms are often used interchangeably.

We will use the term ‘bribe’ as includ-

ing, and as a shorthand for, secret commissions. We will use the following terminology: the

payer is the person paying the bribe; the payee is the recipient; and the principal is the person

to whom the payee owes a duty.

A. IN EQUITY: BREACH OF FIDUCIARY DUTY

The origin of civil actions for bribery lies in equity.

When a secret commission is

paid contrary to a fiduciary duty, the payee is liable for breach of fiduciary duty,

and the

payer is liable in dishonest assistance.

This is because the payment of a commission generates

a conflict of interest between the payee and the principal.

This conflict of interest can be

overcome by consent, so the secrecy renders the commission a breach of duty.

Shipway v

Broadwood

sets out this justification most clearly: ‘the real evil [of bribery] is not the payment

Mahesan

(n 2) 382–83;

Hovenden & Sons v Millhof

(1900) 83 LT 41.

Attorney General for Hong Kong v Reid

[1994] 1 AC 324 (PC) 330;

Reading v Attorney-General

[1951] AC 507 (HL).

Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd

[1990] 1 Lloyd’s Rep 167 (QB)

171 (Leggatt J);

Industries and General Mortgage

(n 6).

FHR European Ventures

(n 3) [5] (Lord Neuberger);

Regal (Hastings) Ltd v Gulliver

[1967] 2 AC 134 (HL) 144G–

145A (Lord Russell). See also

Boardman v Phipps

[1967] 2 AC 46 (HL);

Murad v Al-Saraj

[2005] EWCA Civ 959.

See for example

Industries and General Mortgage

(n 6);

FHR European Ventures

(n 3).

Mahesan

(n 2) 380;

Wood v Commercial First Business Ltd

[2021] EWCA Civ 471, [2022] Ch 123 [96]. The earlier

actions in equity arose as a breach of fiduciary duty. See Derek Whayman, ‘Liability for Bribes and Secret Commissions

at Common Law: Obsolete, Unnecessary and Proba bly a Fusion Fallacy’ (2022) 86 Conveyancer and Property Lawyer

184, 190–01 for a fuller account and examples of earlier cases in equity.

See for example

Regal

(n 17);

Boardman

(n 17);

Murad

(n 17).

Hurstanger

(n 6)

[35];

Novoship (UK) Ltd v Mikhaylyuk

[2014] EWCA Civ 908, [2015] QB 499 [67], [93];

Group

Seven

(n 5);

FirstRand

(n 5) [124]–[142].

See for example

FHR European Ventures

(n 3) [5];

Fiona Trust & Holding Corporation v Privalov

[2010] EWHC

3199 (Comm) [73];

Novoship

(n 21) [106].

Cambridge Law Review (2025) Vol 10, Issue 1

of money, but the secrecy attending it’.

A bribe is thus a helpful shorthand for a secret com-

mission. The remedies available against a payee are the same for any breach of fiduciary duty,

including an account of profits,

equitable compensation,

a proprietary claim,

and res cis-

sion.

The remedies available against a payer include an account of profits, but as a dishonest

assister, payers are only liable for their own profits.

This will usually not include the bribe,

as they have paid this away and have not gained it.

Moreover, half-secret commissions can attract liability, as established by the Court of

Appeal in

Hurstanger Ltd v Wilson

The case involved a lender’s payment of a commission

to a broker, and the document signed by the borrowers included a statement that the lender

paid a commission to its brokers. However, the quantum of the commission was not dis-

closed, and this amounted to a breach of fiduciary duty. This disclosure was a ‘half-way

house’,

which was enough to negate secrecy but insufficient to obtain informed consent. For

half-secret commissions, the ‘full armoury of remedies’ is not available.

A principal could

seek rescission, but not as of right. Rescission would be discretionary and could not be elected

for.

The remaining remedies, including an account of profits, equitable compensation, and

a proprietary remedy, are still available.

While secret commissions will have concurrent lia-

bility for breach of fiduciary duty,

only an equitable action will be available for half-secret

ones.

So, in equity, the payee must owe a fiduciary duty to the principal and disclosure of

the commission must be insufficient to obtain informed consent to the potential conflict of

interest. The payer can be liable as an accessory to the breach of fiduciary duty. While primary

liability will arise for secret commissions at common law,

the payee must have dishonestly

assisted the breach to be liable as an accessory for either a secret or half-secret commission in

equity.

B. AT COMMON LAW: TORT OF BRIBERY

(i) History and Development

The first instances of common law actions occurred in 1808 and 1811 with

Thomp-

son v Havelock

(‘

Havelock

’)

and

Diplock v Blackburn

Derek Whayman has convincingly

Shipway v Broadwood

[1899] 1 QB 369 (CA) 373 (Chitty LJ), quoted in

FirstRand

(n 5) [59].

See for example

Novoship

(n 21) [119]. An account of profits will be available in principle but will be discretionary.

See for example

Mahesan

(n 2);

Swindle v Harrison

[1997] 4 All ER 705 (CA).

The payee holds the bribe or its traceable proceeds on constructive trust:

FHR European Ventures

(n 3).

See for example

Reading

(n 15);

Mahesan

(n 2) 380;

Wood

(n 19) [98].

Ultraframe (UK) Ltd v Fielding (No 2)

[2005] EWHC 1638 (Ch), [2006] FSR 17 [1589]–[1594];

Novoship

(n 21) [84].

Hurstanger

(n 6)

ibid

[45] (Tuckey LJ).

ibid

[46];

Panama and South Pacific Telegraph Company v India Rubber, Gutta Percha, and Telegraph Works Com-

pany

(1874–75) LR 10 Ch App 515 (DC) 526.

Hurstanger

(n 6)

[48];

Spence v Crawford

[1939] 3 All ER 27 1 (HL) 288;

Johnson v EBS Pensioner Trustees Ltd

[2002] EWCA Civ 164 (CA) [78]–[79].

Hurstanger

(n 6)

[49].

Wood

(n 19) [100], [125];

FirstRand

(n 5) [18].

Hurstanger

(n 6)

[46].

FirstRand

(n 5) [18].

ibid.

(1808) 170 ER 1045.

(1811) 170 ER 1300.

Repairing the English Civil Law of Bribery

argued that these cases were really an application of equitable principles of fiduciary duties in

the common law courts using a plea replication mechanism.

The plea replication mechanism

permitted equitable defences, but not claims, in common law courts.

Havelock

uses the lan-

guage of fiduciary duties (‘[n]o man should… have an interest against his duty’

) and

Diplock

states that the commission ‘belonged to the owner’,

which was a result of imposing a con-

structive trust. The plea replication mechanism was needed due to the deficiencies in the

Court of Chancery, including delays arising from a backlog, a reluctance at the time to award

an account of profits, and the inability to hear live evidence.

This is similar to the case of

Taylor v Plumer

a case on tracing heard in the common law courts. Unlike the tracing cases,

the bribery cases were later integrated into the common law action or tort of bribery, instead

of viewing them as cases dealing with equitable principles. For example, in the 1874 case of

Morison v Thompson

the plea replication mechanism could not be used, yet the plaintiffs

still argued a breach of fiduciary duty in the common law courts. The case also treated

Diplock

and

Havelock

as common law authorities, as well as master and servant cases. Cases in equity

were cited separately and were seen as a different category. Since then, there has been a com-

mon law action for bribery. This amounts to a ‘fusion fallacy’,

where the courts have taken

substantive equitable rules and applied them to a common law claim.

The issue is not that a secret commission or bribe can result in an action under the

common law but rather that an action can arise in both equity and common law. This can,

and has, led to differences in the claims and incoherence as a result of diverging rules.

(ii) The Modern Law

The term ‘tort of bribery’ first appeared in the case of

Fiona Trust & Holding Corpo-

ration v Privalov

but is not universally used.

The common law action has been described as

a ‘tort of fraud’

and as ‘sui generis and [defying] classification’.

We will use the term ‘tort of

bribery’ as a convenient, albeit contested, term.

Industries and General Mortgage Co Ltd v

Lewis

sets out the classic test of bribery:

Whayman (n 19) 186–91.

Common Law Procedure Act 1854, s 85: ‘The Plaintiff may reply, in answer to any Plea of the Defendant, Facts which

avoid such Plea upon equitable Grounds; provided that such Replication shall begin with the Words “For Replication

on equitable Grounds,” or Words to the like Effect.’

Havelock

(n 38) 1046.

Diplock

(n 39) 1300.

Whayman (n 19) 187.

(1815) 105 ER 721 . See Lionel D Smith, ‘Tracing in

Taylor v. Plumer

: Equity in the Court of King’s Bench’ [1995]

LMCLQ 240.

(1874) 9 LR 9 QB 480.

The term ‘fusion fallacy’ refers to the argument that some substantive rules have been changed as a result of the

Supreme Judicature Act 1873. It is not to say that rules cannot be chang ed by developing case law, but is a result of the

confusion caused by assuming that the Act fused substantive rules rather than fusing the administration of the courts .

The term was coined by Australian authors but applies equally to English law: see JD Heydon,

MJ Leeming and PG

Turner,

Meagher, Gummow and Lehane’s Equity: Doctrine and Remedies

(5th edn, LexisNexis 2014) paras 2-135, 2-

140.

See Whayman (n 19) 190 for the full argument.

The term first appeared in

Fiona Trust

(n 22) [177] (Andrew Smith J). See also

Otkritie International Investment

Management Ltd v Urumov

[2014] EWHC 191 [66]–[73];

Motortrak Ltd v FCA Australia Pty Ltd

[2018] EWHC 1464

(Comm) [15];

FM Capital Partners Ltd v Marino

[2018] EWHC 1768 (Comm) [550]. The term is not used in

FirstRand

(n 5),

Wood

(n 19), or

Hurstanger

(n 6).

Mahesan

(n 2) 382 (Lord Diplock). However, it is distinct from the tort of deceit and does not depend on any form

of representation:

Petrotrade Inc v Smith

[2000] 1 Lloyd’s Rep 486 ff.

Mahesan

(n 2) (Lord Diplock).

Cambridge Law Review (2025) Vol 10, Issue 1

For the purposes of the civil law a bribe means the payment of a secret com-

mission, which only means (i) that the person making the payment makes it

to the agent of the other person with whom he is dealing; (ii) that he makes it

to that person knowing that that person is acting as the agent of the other

person with whom he is dealing; and (iii) that he fails to disclose to the other

person with whom he is dealing that he has made that payment to the person

whom he knows to be the other person’s agent.

The tort of bribery is similar to the equitable claim in that the payer pays a bribe. The

payee owes some form of duty to the principal and the principal does not have knowledge of

the bribe.

The key difference is the duty. The payee must be ‘under a duty to provide infor-

mation, advice or recommendation on an impartial or disinterested basis’.

The authority for

this ‘disinterested duty’ is

Wood v Commercial First Business Ltd

There is a long line of

cases describing the duty as being ‘disinterested’.

Wood

formulates this into a disinterested

duty which is distinct from a fiduciary duty.

To be liable at common law for bribery, all that

is needed is a disinterested duty, not a fiduciary one. There will still usually be a fiduciary duty

as well, as there was in

Wood

Both a breach of a disinterested duty and a breach of fiduciary

duty are sufficient to attract liability for a payee for a secret commission.

They will arise

concurrently. Half-secret commissions can be a breach of fiduciary duty and will not attract

liability at common law. Whether it is coherent to categorise a disinterested duty as not being

fiduciary will be challenged in Section IV, as we argue that a disinterested duty is just a fiduci-

ary duty of limited scope.

Another difference is that the payer is also liable for the tort of bribery.

As the action

is available against both the payer and payee, it is perhaps inaccurate to call it a single tort of

bribery, but it is well-established that both are primarily liable at common law.

What is re-

quired is knowledge that the payee is an agent, fiduciary, or under a disinterested duty.

The remedies available will be compensation for loss suffered by the principal, liabil-

ity for which is joint and several.

This will typically be the value of the bribe

or losses due

to entry into a transaction that was caused by the bribe. There will also be a restitutionary

Industries and General Mortgage

(n 6).

Wood

(n 19)

[48] (David Richards LJ).

ibid.

See for example

Panama and South Pacific Telegraph

(n 31) 528–29 (Mellish LJ);

Logicrose Ltd v Southend United

Football Club Ltd

[1988] 1 WLR 1256 (Ch) 1260–61 (Millett J).

Wood

(n 19)

[48]–[49].

ibid [110].

ibid [128].

Mahesan

(n 2).

FirstRand

(n 5) [18], [77].

Industries and General Mortgage

(n 6).

Mahesan

(n 2).

This is often assumed: see for example ibid 381;

The Mayor, Aldermen, and Burgesses of the Borough of

Salford v

Lever

[1891] 1 QB 168 (CA) 176–77;

Grant v The Gold Exploration and Development Syndicate Ltd

[1900] 1 QB 233

(CA) 244.

Repairing the English Civil Law of Bribery

remedy for the value of the bribe.

This is referred to as an action for ‘money had and re-

ceived’ in

Mahesan

and other common law cases.

This can be either as a restitution for

wrong or an account as against the payee, and a change of position defence will not be availa-

ble.

Bribery itself is a ground for rescission at common law,

and rescission will also be avail-

able as an absolute right subject to the bars.

C. DIFFERENCES BETWEEN THE ACTIONS

At common law, the payer is subject to primary liability under the same cause of

action as the payee.

This is distinct from equity, where accessory liability for breach of fidu-

ciary duty must be proved, which means establishing a claim for dishonest assistance which is

more onerous. There is also no need to prove a fiduciary duty and, as a tort, remedies (in

particular rescission) are available as a right.

However, half-secret commissions do not fall within the tort, as discussed above, and

only attract liability as a breach of fiduciary duty.

A proprietary remedy is likely unavailable

as their availability arises from the imposition of a constructive trust owing to a breach of

fiduciary duty.

FHR European Ventures LLP v Cedar Capital Partners LLC

, the leading

authority on proprietary remedies for secret commissions, explicitly reasons using fiduciary

duties and does not mention any common law cases.

III. THE DECISION OF

JOHNSON V FIRSTRAND BANK LTD

When a consumer goes to buy a second-hand car, the dealer will often offer to act as a credit

broker and arrange financing to help them buy the car. The dealer will usually receive a com-

mission from the lender for this. The issue is where the commission has been kept secret

from the consumer or is hidden away in the terms and conditions. While the dealer’s profit

on the sale itself would be obvious, a commission from the lender would likely be a surprise.

The customer may not have agreed to the finance, having this knowledge.

The facts in the three appeals follow the general fact pattern set out above. In all three,

the claimants were ‘financially unsophisticated consumers on relatively low incomes’,

who

bought cars on finance brokered by the car dealers. In

Hopcraft v Close Brothers Ltd

, there

was no disclosure whatsoever and it was secret.

Wrench v Firstrand Bank Ltd

it was

partially disclosed in the lender’s standard terms and conditions that a commission ‘may be

payable by us to the broker who introduced this transaction to us. The amount is available

from the Broker on request’.

However, the statement was so ‘buried’ in the lender’s standard

Mahesan

(n 2).

ibid;

Boston Deep Sea Fishing and Ice Co v Ansell

[1886–90] All ER Rep 65 (CA) 75 (Bowen LJ);

Salford

(n 63) 176

(Lord Esher MR).

FM Capital Partners Ltd v Marino

[2020] EWCA Civ 245, [2021] QB 1.

Smith v Sorby

(1875) 3 QBD 552 (QB);

Wood

(n 19) [99].

Conway v Eze

[2018] EWHC 29 (Ch) [143]–[156].

Wood

(n 19) [94].

Hurstanger

(n 6)

FHR European Ventures

(n 3) [46], [47]–[48].

ibid [47]–[48].

FirstRand

(n 5) [6] (Andrews, Birss and Edis LJJ).

ibid [27].

ibid [34], referring to cl 12.6.

Cambridge Law Review (2025) Vol 10, Issue 1

terms and conditions that it was insufficient to negate s ecrecy and was a secret commission.

FirstRand

, it was the same as

Wrench

, but the dealer also provided a ‘Suitability Docu-

ment’ which stated that ‘we may receive a commission from the product provider’.

It was

therefore treated as a half-secret commission.

Andrews LJ, Birss LJ and Edis LJ held in a joint judgment that the dealers acted as

both sellers of the cars and credit brokers on behalf of the claimants. In all three cases, the

dealers owed both a ‘disinterested duty’, described

Wood

and a fiduciary duty to the

principals in their capacity as credit brokers.

Hopcraft

and

Wrench

the commissions

were fully secret, so the payees were liable for breach of a disinterested duty which was suffi-

cient to give rise to a primary liability of the lenders.

The fiduciary duty owed was parallel.

FirstRand

, the commission was half-secret,

so only a breach of fiduciary duty would suffice

to make the payee liable,

and a claim for accessory liability would have to be sought against

the lenders.

Both claims were successful. The claimant in

FirstRand

did not need to bring

specific evidence of dishonesty of the payer; knowledge of the agency relationship and thus a

fiduciary duty was enough.

Therefore, in fully secret commissions where there has been no disclosure, the payee

must owe either a duty to provide information, advice, and recommendation on an impartial

and disinterested basis (disinterested duty), or a fiduciary duty.

The payer of the commission

will be primarily liable for bribery where there is a breach of disinterested duty.

Disgorge-

ment of the secret commission and rescission will be available as of right.

Accessory liability

of the payer must be established for breach of fiduciary duty. In half-secret or partially dis-

closed (using the language of

FirstRand

) commissions, the payee must owe a fiduciary duty to

the principal and disclosure must be insufficient to obtain informed consent to the potential

conflict of interest.

The payee must owe a fiduciary duty for the pa yer to attract accessory

liability for dishonest assistance.

The payer must have knowledge that the broker was a fidu-

ciary.

There was a further ground of appeal for a claim under sections 140A–C of the Con-

sumer Credit Act 1974. The court found that the relationship between a lender and consumer

was unfair under the Act. This claim is beyond the scope of this article.

ibid [119].

ibid [8].

ibid [120].

ibid [87]–[88].

ibid [91]–[92], [173].

ibid [173].

ibid.

ibid [112].

ibid [77].

ibid [124], [137].

ibid [133].

ibid [77].

ibid [81].

ibid [77].

ibid [60].

ibid [80].

ibid [133].

Repairing the English Civil Law of Bribery

IV. DEFICIENCIES IN THE REASONING

A. WHY IS THERE A DISINTERESTED DUTY AND FIDUCIARY DUTY?

The first key issue is why the disinterested duty and fiduciary duty are imposed upon the

dealer. The issue is not necessarily the imposition of these duties, but rather the lack of con-

vincing reasoning and the inadequate normative explanations that are provided. We will begin

by dealing with when a fiduciary duty does arise.

Fiduciary duties arise in settled categories of relationships without further inquiry,

such as for trustees and beneficiaries,

agents and principals,

solicitor and clients,

partners

in a partnership, and directors an d their company.

English law also recognises ad hoc fidu-

ciary relationships, which arise by undertaking, as opposed to status. As Millett LJ states in

Bristol and West Building Society v Mothew

, a person ‘is not subject to fiduciary obligations

because he is a fiduciary; it is because he is subject to them that he is a fiduciary’.

This posi-

tion is the same in Australia

and Canada.

Millett LJ defines a fiduciary as ‘someone who has undertaken to act for or on behalf

of another in a particular matter in circumstances which give rise to a relationship of trust and

confidence’.

100

This has been cited with approval in the Supreme Court in

FHR European

Ventures

101

and is acknowledged in

Sheikh Tahnoon Bin Saeed Bin Shakhboot

Al Nehayan

v Kent

(‘

Al Nehayan

’)

102

by Leggatt J who, approving Mason J’s approach in

Hospital Products

Ltd v United States Surgical Corporation

103

states that fiduciary duties ‘arise where one person

undertakes and is entrusted with authority to manage the propert y or affairs of another and

to make discretionary decisions on behalf of that person’.

104

When considering if a fiduciary

duty is imposed, the duty we are looking at is the duty of undivided loyalty, meaning that you

are guided solely by the interests of the principal and not the fiduciary’s own interests. This is

because the duty of undivided loyalty gives rise to the rules that justify liability for bribes.

The Court in

FirstRand

states that, like the case of

McWilliam v Norton Finance

(UK) Ltd

105

‘[t]he very nature of the duties which the credit broker undertook gave rise to a

“disinterested duty”’.

106

It is not explained why undertaking duties as a credit broker gives rise

to this duty. Moreover, the Court states that there is an ‘ad hoc fiduciary duty… arising from

the nature of the relationship, the tasks with which the brokers were entrusted, and the obli-

gation of loyalty which is inherent in the disinterested duty’.

107

Keech v Sandford

(1726) 25 ER 223.

Kelly v Cooper

[1993] AC 205 (PC).

Bristol and West Building Society v Mothew

[1997] 2 WLR 436 (CA).

Guinness Plc v Saunders

[1990] 2 AC 663 (HL).

Bristol and West Building Society

(n 95) 18 (Millett LJ), quoting the classic formulation in PD Finn,

Fiduciary Obli-

gations

(Law Book Co 1977) 2.

Hospital Products Ltd v United States Surgical Corporation

[1984] HCA 64, (1984) 156 CLR 41 (HCA) 96—97 (Ma-

son J).

Galambos v Perez

, 2009 SCC 48, [2009] 3 SCR 247 [37].

100

Bristol and West Building Society

(n 95) 18.

101

FHR European Ventures

(n 3) [5].

102

[2018] EWHC 333 (Comm), [2018] 1 CLC 216.

103

Hospital Products

(n 98).

104

Al Nehayan

(n 102) [159].

105

[2015] EWCA Civ 186, [2015] 1 All ER (Comm) 1026.

106

FirstRand

(n 5) [87].

107

ibid [91] (Andrews, Birss and Edis LJJ).

Cambridge Law Review (2025) Vol 10, Issue 1

The underlying transaction in these cases is that of a sale, and the primary relationship

is that of a buyer and seller. This is true eve n if the car is sold immediately or on credit, and

it is still true if a third party lender is introduced to the transaction. The dealer is not neces-

sarily subordinating their interest to that of the customer. The idea that the duties of a credit

broker can justify imposing a disinterested interest are simply not true. There must be some-

thing more to justify imposing a duty.

Compare a

Quistclose

trust, for example. It is often said that it arises when money is

transferred for a specific purpose,

108

most commonly in a contract for a loan. But most loans

are under a contractual relationship and you would expect that all the rights and relationships

of parties are in the contract. If one of them has bargained for a security, it must be in an

express term in a contract; there must be something more. Yet a trust arises in a contract with

no mention of a security, property interest, or trust. That something more is necessarily ob-

jective intention that the money be used for that purpose and

no other purpose

, that it is not

at the free disposal of the parties,

109

and is of a fiduciary nature.

110

Further, if the money is

segregated, that is an indicative, but not necessary, factor.

111

There is a presumption to over-

come.

The same is true of a contract for sale or hire-purchase agreement. It is a consensual,

contractual relationship and you would expect the rights, relationships, and duties of each

party to the contract to be contained within the contract. A fiduciary duty is consensual. When

a fiduciary duty falls into one of the established categories, such as that of a trustee, agreeing

to take on that role means that you have agreed to be a fiduciary. Likewise, an ad hoc fiduciary

duty must be consensually agreed to. If the car dealers had intended to act as agents or fidu-

ciaries when brokering finance, we would expect t hem to enter into an agency agreement.

Any undertaking to become a fiduciary must amount to subordinating their interest to that of

the customer and must be substantial enough to overturn the presumption of sale. Equity’s

intervention in this commercial transaction must be justified by strong indications of consent.

Equity’s role here is not to intervene to protect the vulnerable, a role being fulfilled by con-

sumer law, including the unfair relationship claim under sections 140A-C of the Consumer

Credit Act 1974, which is being argued in this very case.

FirstRand

seems to look at this backwards. It states that, ‘unless the broker made it

clear to the consumer that they could not act impartially because they had a financial incentive

[from the lenders]’,

112

this gave rise to a disinterested duty. The Court treats credit brokerage

as having a presumption of fiduciary duties when they should be doing the opposite and trying

to overcome the presumption that it is a sale. One party’s role as a credit broker cannot and

should not without more impose fiduciary or disinterested duties; the evidence must demon-

strate that such duties have been undertaken or agreed to. We must look elsewhere for a

justification in the case.

The Court in

FirstRand

also looked at the relationship between the brokers and the

buyers. The claimants were ‘more vulnerable than someone who might have had the choice

to pay in cash’ and they all ‘relied on the dealer to find them an offer which met their needs’.

113

The issue with this reasoning is that an undertaking justifies a fiduciary duty, not the nature of

the relationship itself. The vulnerability of the claimants means that they expect a relationship

108

Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd

[1985] Ch 207 (Ch) 222B.

109

Twinsectra Ltd v Yardley

[2002] UKHL 12, [2002] 2 AC 164 [74].

110

ibid [76].

111

Re Kayford Ltd

[1975] 1 WLR 279 (Ch) 282.

112

FirstRand

(n 5) [87] (Andrews, Birss and Edis LJJ).

113

ibid [91].

Repairing the English Civil Law of Bribery

of ‘trust and confidence’, but the ‘trust and confidence’ that Millett LJ speaks of is a conse-

quence of an undertaking, not a prerequisite. Leggatt LJ in

Al Nehayan

reminds us that there

are many commercial transactions that create trust and confidence, but which are not fiduciary

duties. In

Re Goldcorp Exchange Ltd

114

the customers trusted a company to do what it prom-

ised and keep gold bullion safe for them, but the Privy Council did not find them to be fidu-

ciaries. Any undertaking must create a legitimate expectation of a relationship, not just of trust

and confidence, but one where the dealers would put aside their own self-interest. This is not

to deny the importance of how vulnerable the claimants are, but it is to say that the Court’s

arguments are insufficient.

The issue in

FirstRand

was that the Court operated from a presumption that acting as

a credit broker would impose a disinterested duty. They are not treating credit brokers as

status-based fiduciaries and they are not arguing to that effect. B ut they discuss the brokers

being ‘in a position to take advantage of their vulnerable customers ’ and mention that there

was a ‘reasonable and understandable expectation that they would act in their best interests’,

115

without discussing whether the brokers had undertaken that expectation or whether it had

simply arisen from the buyer’s perspective. The only thing that the brokers undertook, as the

court discusses, was to act as credit brokers.

116

The court is therefore presuming that the un-

dertaking to act as a credit broker is sufficient to be an undertaking to act as a fiduciary. This

presumption essentially conflates status-based and ad hoc fiduciaries. Once we reverse the

presumption, given that the transaction is not one that is typically fiduciary, we can see that

the Court has insufficiently justified the imposition of fiduciary duties. The vulnerability of

the claimants is also insufficient to justify the duties.

B. ACCESSORY LIABILITY

The Court also takes a broad-brush approach to accessory liability for breach of fidu-

ciary duties. The Court is bound by the well-established decision,

Twinsectra Ltd v Yardley

117

which requires that, for accessory liability in any breach of fiduciary duty, the accessory must

act dishonestly. The Court said that dishonesty in this context meant ‘knowing about’ or de-

liberately turning a blind eye to the breach of fiduciary duty.

118

First, this conflates dishonesty

with knowledge. For knowledge to amount to dishonesty, the knowledge must have been

against the standard of an ordinary honest person in the circumstances of the defendant.

119

There is no indication of this whatsoever. Applying

Twinsectra

as it stands as the test for

dishonesty (as the Court in

FirstRand

did

120

) ignores the change in the definition of dishonesty

as introduced by

Ivey v Genting Casinos (UK) Ltd

121

and as applied to equity in

Group Seven

Ltd v Nasir

122

Even in tort, the lender must know that they are bribing an agent. Here this is

impossible as no one thought that the brokers were an agent prior to the decision. While in

some cases, brokers had been made fiduciaries, such as in

Wood

it was seen as ad hoc and

not applying to all brokers as a class. Knowledge of the commission is not knowledge of a

114

[1995] 1 AC 74 (PC).

115

FirstRand

(n 5) [100] (Andrews, Birss and Edis LJJ).

116

ibid [86]–[87], [89], [91]–[93].

117

Twinsectra

(n 109).

118

FirstRand

(n 5) [128] (Andrews, Birss and Edis LJJ).

119

Group Seven

(n 5) [52]–[58], applying

Ivey v Genting Casinos (UK) Ltd

[2017] UKSC 67, [2018] AC 391 [74].

120

FirstRand

(n 5) [127].

121

Ivey

(n 119).

122

Group Seven

(n 5).

Cambridge Law Review (2025) Vol 10, Issue 1

fiduciary duty. It also requires that the lender should assume that the dealer will not disclose

the commission.

The source of this issue is a ‘fusion fallacy’. When the tort of bribery split off from

the breach of fiduciary duty, accessory liability in equity was knowing assistance,

123

not dishon-

est assistance,

124

and thus only knowledge was required to make the payer of a bribe liable. By

paying the bribe, knowledge is almost automatic in the case of secret commissions; the payer

is always liable, and thus accessory liability is transmuted into primary liability by virtue of this

inevitability. As tortious liability arises concurrently with a breach of fiduciary duty in the case

of secret commissions, there would be no need to address dishonesty for accessory liability.

It then seems that dishonesty is no longer a requirement for accessory liability for breach of

fiduciary duty in the context of bribes, and some cases such as

Wood

go as far as saying that

the payer is not an accessory but a primary wrongdoer in equity as well as common law.

125

When such beliefs arise for breaches of fiduciary duty for secret commissions, they

remain for half-secret commissions. For example, there is not a single mention of dishonesty

Hurstanger

. The presence of two causes of actions has resulted in divergence on this issue,

not just by virtue of the cause of action being in tort or equity, but because the tort of bribery

applies outdated equitable rules on accessory liability.

V. REPAIRING THE REASONING

A. CAN A FIDUCIARY DUTY BE IMPOSED?

A fiduciary is someone who has ‘undertaken to act for or on behalf of another in a particular

matter in circumstances which give rise to a relationship of trust and confidence’.

126

This is not

a test, but an indicative factor as there is no single authoritative test for ad hoc fiduciary duties.

The common factor in

Bristol and West Building Society

Al Nehayan

and

Hospital Prod-

ucts

was the idea of an undertaking.

Since, in

FirstRand

, there were no express undertakings,

the test is essentially the same as the test of implication of terms in

Attorney General of Belize

v Belize Telecom Ltd

127

did the party, by their words or conduct, give rise to an understanding

or expectation in a reasonable person that they would act in a particular way?

128

Other indica-

tive factors include authority and discretion,

129

which were present given the inexperience of

the claimants who essentially allowed the brokers to choose for them. Another indicative fac-

tor is whether the claimants have a ‘legitimate expectation’ that the brokers will not act in their

own self-interest.

130

The questions we are asking are the following: did the dealers in

FirstRand

make

undertakings that gave rise to a relationship of trust and confidence (not was there trust and

confidence) and could the claimants have legitimate expectations of undivided loyalty? In

123

Barnes v Addy

(1874) LR 9 Ch App 244. This is the most well-known authority for knowing a ssistance.

124

Royal Brunei Airlines Sdn Bhd v Tan

[1995] UKPC 4. This was the first instance of dishonest assistance and all cases

of accessory liability for breach of fiduciary duty prior to it were for knowing assistance .

125

Wood

(n 19) [94].

126

Bristol and West Building Society

(n 95) 18 (Millett LJ). See James Edelman ‘When Do Fiduciary Duties Arise?’

(2010) 126 LQR 302 for a detailed exploration.

127

[2009] UKPC 10, [2009] 1 WLR 1988 [21].

128

Edelman (n 126) 314–17.

129

Al Nehayan

(n 102)

[159].

130

Arklow Investments Limited v Maclean

[2000] 1 WLR 594 at 598;

Farrar v Miller

[2018] EWCA Civ 172 [75]; ibid

[161], [166], [167] (Leggatt LJ);

Kelly & Anor v Baker & Anor

[2022] EWHC 1879 (Comm).

Repairing the English Civil Law of Bribery

Wrench

, a sales representative made an express assurance twice that the dealership would get

him the best deal from their panel of lenders and one that was most suitable for his needs.

131

The language of ‘most suitable’ and ‘best’ gives rise to a legitimate expectation that it is the

claimant’s interest that is being prioritised and that the broker is putting their own interests

aside (apart from their interest in the sale, which the claimants have consented to). In

FirstRand

, the dealers brokered not only a hire-purchase agreement but a personal loan, and

they made misleading and false statements which created an impression that the dealer was

exercising its judgment in selecting a finance provider that ‘may be most appropriate’ for the

customer’s needs from a panel of 22 lenders, when in fact there was an undisclosed obligation

to give first refusal to FirstRand Bank.

132

These assurances are what give rise to a legitimate

expectation. The Court considered these additional factors in

FirstRand

in deciding whether

it gave rise to an unfair relationship for the Consumer Credit Act 1974 claim, but not in rela-

tion to whether it gave rise to fiduciary duties.

Moreover, the higher the degree of trust, vulnerability, and confidence placed in the

fiduciary, the more likely that a reasonable person would view it as creating legitimate expec-

tations or undertakings that would give rise to a relationship of trust and confidence, not

whether the pre-exiting relationship was one of trust and confidence (which is how the Court

FirstRand

approached it). Thus, Miss Hopcraft being ‘naïve’ and ‘vulnerable’

133

and her

assumption that the dealer would give her the best deal are strong indicators that there was

such a relationship.

134

Therefore, the imposition of a fiduciary duty in that case must be con-

sidered a fact-specific one and not one that applies to all credit brokering.

This also explains why the dealer is treated separately as a credit broker and as a

seller. The division of the relationship is justified as the undertaking to obtain finance is only

related to getting finance. While a consumer might not separate the transaction in their mind,

the question is what the dealer has undertaken, and they have only undertaken as a credit

broker. It also explains the narrowness of the fiduciary duty, as it is not an all -encompassing

fiduciary duty but only in relation to the transaction.

This is not how the court viewed it. They applied a broad-brush approach, and this

result should apply to all car finance cases involving partially disclosed or undisclosed com-

missions.

135

Instead, deciding whether there is a fiduciary duty should be a fact-specific exer-

cise. The court should have looked at whether undertakings were made by the dealers and if

there was a particular vulnerability of the buyers.

B. ACCESSORY LIABILITY

For the lender to be liable as an accessory in these cases, dishonesty must be proved

and evidenced. Knowledge is insufficient. Otherwise, the application of accessory liability will

continue to conflict with the rest of the law on dishonest assistance.

To be liable for assisting in a breach of fiduciary duty, the lender must act dishonestly.

As Lord Hutton stated in

Twinsectra

, ‘dishonesty requires knowledge by the defendant that

what he was doing would be regarded as dishonest by honest people’.

136

This is the common

131

FirstRand

(n 5) [95].

132

ibid [48] (Andrews, Birss and Edis LJJ).

133

ibid [23].

134

ibid.

135

ibid [91], [105].

136

Twinsectra

(n 109) [36].

Cambridge Law Review (2025) Vol 10, Issue 1

standard of dishonesty for accessory liability in breach of fiduciary duties. However, this lan-

guage of dishonesty appears nowhere in

Hurstanger

requiring only knowledge.

137

FirstRand

states that dishonesty means ‘knowing about, or deliberately turning a blind eye to, the breach

of the broker’s fiduciary duty to their principal’.

138

The Court in

FirstRand

cites

Twinsectra

and recognises the tension between the two cases.

139

However, instead of trying to reconcile

these two cases, the law should adopt the dishonesty standard. A single standard has the ben-

efit of consistency and, importantly, it makes it harder for lenders to be liable, which, as we

will argue in Section IV, is more desirable.

Group Seven

makes it clear that the knowledge and belief of the defendant are sub-

jective and that the standard of dishonesty is objective.

140

Blind-eye knowledge is dishonest

when you avoid confirming what you suspect to be true, but not when you suspect something

and you ‘negligently refrain[] from making further inquiries’;

141

this is the correct interpretation

of blind-eye knowledge as discussed in

Twinsectra

FirstRand

expands ‘turning a blind eye’

well beyond its natural meaning and beyond how it applies in law.

FirstRand

states that know-

ing that a dealer acts as a credit broker for a fiduciary means that they cannot pay an undis-

closed commission to them.

142

It is reasonable to expect someone to know that a trustee is a

fiduciary, as all trustees are. Thus, knowingly paying a secret commission to a trustee will

always be a breach of fiduciary duty and thus dishonest. As fiduciary duties for brokers are ad

hoc, one cannot expect a reasonable lender to assume a fiduciary duty in every case, even if

it was present is some cases, such as in

Wood

. To do so would transmute brokerage into a

new category of status-based fiduciary. Therefore, knowledge of a commission is not neces-

sarily knowledge that it is secret (as a lender does not know that there is a duty of disclosure),

that it is to a fiduciary, or that it is in breach of fiduciary duty from the point of view of the

reasonable person. Knowing that a shadow moves does not necessarily mean knowing what

casts it. Further,

FirstRand

posits that failing to ensure that the disclosure is made means that

the lender deliberately takes the risk that it will not be disclosed . But a failure to prevent an

action is not automatically a deliberate omission. Negligent failures do not fall under turning

a blind eye, as noted in

Group Seven

above.

Further, if the financier contracted that the broker must make a disclosure, as a matter

of contract law they can assume that that disclosure will be made.

143

There is no reason why

this should not also be the case in the context of brokerage, so that there is no reason to

suspect a lack of disclosure, let alone require inquiry.

C. FU SING THE TORT O F BRIBER Y AND BR EACH OF FIDUCIA RY

DUTY

We propose absorbing the tort of bribery into a breach of fiduciary duty. In this sec-

tion, we aim to show that it is possible as the disinterested duty can be considered the same

type of duty as the fiduciary duty of loyalty, just with a more limited scope.

137

Hurstanger

(n 6)

[35].

138

FirstRand

(n 5) [128] (Andrews, Birss and Edis LJJ).

139

ibid [177].

140

Group Seven

(n 5) [57].

141

ibid [59] (Henderson, Peter Jackson and Asplin LJJ).

142

FirstRand

(n 5) [128].

143

Cehave NV v Bremer Handelsgesellschaft MBH

(‘

The Hansa Nord

’) [1976] QB 44 (CA) 71 (Lord Mustill) (‘con-

tracts are made to be performed and not to be avoided’); Ruxley Electronics and Construction Ltd v Forsyth [1996] AC

344 (HL) 360; Daniel Friedmann, ‘The Performance Interest in Contract Damages’ (1995 ) 111 LQR 628, 629.

Repairing the English Civil Law of Bribery

While a fiduciary duty was found on the facts of

Wood

, it was desirable for the claim-

ant to try to obtain two key advantages found in the tort of bribery. These advantages are (i)

that the payer is primarily liable as long as they have knowledge that the payee was subject to

a duty

144

and (ii) that rescission is available as of right (subject to the bars).

145

If the language of

fiduciary duties is used to describe the duty, it makes it seem close to the equitable action.

This was particularly risky as

Hurstanger

imposed a very wide discretion in awarding damages.

Citing

Johnson v EBS Pensioner Trustees L td

146

Tuckey LJ considered that awarding rescis-

sion would be disproportionate and unfair and so he awarded damages to the borrowers in-

stead. Such a power exists by virtue of section 2(2) of the Misrepresentation Act 1967, which

allows upholding contracts and awarding damages in the case of

innocent misrepresentation

but it is not a general power. It is constitutionally inappropriate to expand statutory power in

this manner. More importantly to claimants, the exercise of this discretion is far more unpre-

dictable. Equitable rescission was, like other equitable remedies, subject to a ‘weak’ discre-

tion.

147

This means that it was subject to the bars to rescission, such as

restitutio in integrum

clean hands, third-party impact, or affirmation. In addition, there is now a wider discretion to

refuse rescission. There was thus a significant incentive to avoid falling within equity’s juris-

diction that was not present in earlier cases. It is submitted that this is a key reason for trying

to argue the case as a disinterested duty, as opposed to a fiduciary one.

David Richards LJ in

Wood

considered the fiduciary duty required for bribery to be

the ‘core’ fiduciary duty of undivided loyalty.

148

But the disinterested duty is not a different

duty to that of the duty of undivided loyalty. The duty of undivided loyalty means that you

must prioritise the principal’s interests over your own interests and the interests of other peo-

ple.

149

Ultimately, it is about conflict of interest. The disinterested duty in

Wood

is derived

from cases that discussed equitable principles.

150

None of the cases cited in

Wood

held that a

disinterested duty is different from a fiduciary one; instead, in each case, the payee was a

fiduciary and so a fiduciary duty was owed. The language of ‘disinterest’ is used as an alterna-

tive formulation of ignoring others’ interests and prioritising the principal’s interests. The duty

of undivided loyalty does not have a set definition, and all that any definition can do is capture

the issue of conflicts of interest; ‘disinterest’ does just that. The duty of undivided loyalty is

wider than the disinterested duty, but it is best to view the disinterested duty as a fiduciary duty

in relation to the advice given. The scope is limited by the undertaking make by brokers. The

fiduciary duty of loyalty is not absolute and can be modified. Contractual trusts can exclude

or limit the duty of loyalty for certain purposes, such as in

Citibank NA v MBIA Assurance

151

and conflicts can be agreed in the trust deed, such as where a trustee is also a beneficiary

144

Mahesan

(n 2).

145

Wood

(n 19) [101].

146

[2002] Lloyds Rep PN 309.

147

The distinction betwe en ‘weak’ and ‘strong’ discretion is based on one that is drawn in Ronald Dworkin,

Taking

Rights Seriously

(rev edn, Duckworth 1978) 31 –39. There is support for strong discretion in choosing remedies wher e

judges can choose the most appro priate remedy on the facts, but see for example Peter Birks, ‘Rights, Wrongs, and

Remedies’ (2000) 20 OJLS 1; Peter Birks, ‘Three Kinds of Objection to Discretionary Remedialism’ (2000) 29 Univer-

sity of Western Australia Law Review 1.

148

Wood

(n 19) [27]. The idea of the duty of loyalty being the ‘core’ duty comes from

Bristol and West Building Society

(n 95) 18 (Millett LJ).

149

Bristol and West Building Society

(n 95) 18.

150

Panama and South Pacific Telegraph

(n 31) 528–29 (Mellish LJ) (‘honest and disinterested advice’);

Shipway

(n 23)

(Chitty LJ) (‘his duty conflicted with his interest’);

Logicrose

(n 55)

(Millett J) (‘the a gent has put himself in a position

where his interest a nd duty may conflict. A principal is entitled to the disinterested advice’);

Anangel Atlas Compania

Naviera

(n 16) 169 (Leggatt J) (‘his duty and his interest conflict’).

151

[2006] EWHC 3215 (Ch).

Cambridge Law Review (2025) Vol 10, Issue 1

(the trust deed has agreed that a trustee can act in their own interest as well) or for discretionary

trusts where conflict between the beneficiaries is built into the trust. Similarly, any written or

oral undertakings made by the broker can modify the scope of the fiduciary duty that is

adopted. Therefore, we can see the disinterested duty as a case of a modified fiduciary duty,

which relates only to the informati on, advice, or recommendations given. Thus, a breach of

a disinterested duty is a breach of fiduciary duty, which falls within the equitable jurisdiction.

What David Richards LJ ends up doing is assessing whether there is a ‘requirement

for a fiduciary relationship’,

152

instead of asking whether a fiduciary duty is imposed. As the

tort of bribery is not a breach of fiduciary duty, it is not a necessary element of the action.

‘The law of bribery is, in its fundamentals, a manifestation of the law of agency and fiduciary

duties’,

153

so the common law simply acts as ‘tortious interference’,

154

in getting to the heart of

the action. He states that, while it may be ‘accurate’ that a disinterested duty is characterised

as a fiduciary duty of loyalty, we should not engage in this analysis as it is ‘complex’ and you

should instead ask the ‘straightforward question’ of whether a disinterested duty is owed.

155

But, as a new development, there is little case law to answer when a disinterested duty is owed,

while there is a large body of fiduciary law to answer when a fiduciary duty is owed. The fact

that fiduciary law is complex does not mean that we shoul d ignore it. Owing a fiduciary duty

is onerous, and ad hoc fiduciary duties are and should be relatively rare and difficult to find.

Being ad hoc means that the relationship falls outside the norm of fiduciary relationships.

Pretending that the rules of fiduciary law do not exist does not make the rules disappear and

our considerations of when they should be owed are not properly argued. Moreover, the

Court of Appeal in

FirstRand

states that the ‘obligation of loyalty… is inherent in the disinter-

ested duty’.

156

The Court recognises that a disinterested duty and fiduciary duty (as a duty of

undivided loyalty) are the same thing or, at least, that both respond to ‘loyalty’. However, as

the Court of Appeal, they are bound by the errors in

Wood

as a matter of precedent or they

refused to consider

Wood

to be incompatible with

Hurstanger

and the rest of the law.

157

If we view the disinterested duty as a modified fiduciary duty, we can consider both

duties to be equitable. The differences are also explained by the undertakings made and not

by status or the action from which they arose. As the disinterested duty is a modified fiduciary

duty, the tort of bribery should be absorbed into the breac h of fiduciary duties. Why is this

desirable? We take the position of Andrew Burrows that differen t rules at common law and

in equity cannot be justified by reference to their historical and jurisdictional origins,

158

alt-

hough we recognise the contrary position that the Judicature Acts of 1873 and 1875 brought

152

Wood

(n 19) [39], [52], [92].

153

Thomas Grant and David Mumford (eds),

Civil Fraud: Law, Practice and Procedure

(1st edn, Sweet & Maxwell 2018)

para 7-006.

154

The term is used non-technically.

155

Wood

(n 19) [102] (David Richards LJ).

156

FirstRand

(n 5) [91] (Andrews, Birss and Edis LJJ).

157

The Court of Appeal are bound by their own previous decisions, unless (i) there is conflicting House of Lords or

Supreme Court authority, (ii) there are two earlier conflicting Court of Appeal decisions, or (ii) a decision was made

per

incuriam

Young v Bristol Aeroplane Co Ltd

[1944] KB 718 (CA).

158

Andrew Burrows, ‘We Do This at Common Law But That in Equity’ (2002) 22 OJLS 1, 3–5. This position is con-

troversial, but now widely adopted in English private law to varying degrees of success. See for example

Target Holdings

Ltd v Redferns

[1996] AC 421 (HL) and

AIB Group (UK) Plc v Mark Redler & Co Solicitors

[2014] UKSC 58, [2015]

AC 1503 [71], in the context of compensation in equity, and

Times Travel (UK) Ltd v Pakistan International Airlines

Corporation

[2021] UKSC 40, [2023] AC 1 01 [5]–[9], [89]–[90] , for cases of undue influence now being treated as

duress.

Repairing the English Civil Law of Bribery

only administrative and not substantive fusion of common law and equity.

159

The ‘fusion fal-

lacy’, proposed in

Meagher, Gummow and Lehane’s Equity: Doctrine and Remedies

160

and

taken up by later authors of the book, just means that one must recognise that they are sepa-

rate doctrines and that we can develop and fuse them using the basic common law techniques

of analysing the principles and progressing the law slowly by analogy. We cannot automatically

fuse rules by reference to history. The tort of bribery is particularly egregious in that it created

a new concurrent jurisdiction ins tead of fusing two separate doctrines. As Whayman has ar-

gued, the doctrines have a common origin. They both deal with the same question: how

should the law respond to bribes and secret commissions paid to agents and fiduciaries? The

law should not have two answers to the same question without good reason. We can think of

none.

We are then left with the choice of constructing a new action or choosing between

the two. We propose choosing the equitable action of breach of fiduciary duty. This has the

benefit of having a wider body of law around it with the entire body of fiduciary law and equity,

while the common law action is ‘sui generis’.

161

The disinterested duty is also best viewed as a

modified fiduciary duty, as we have argued above, which responds to the same issue as a

fiduciary duty of loyalty. Dealing with it under equity means that we deal with the purpose of

a disinterested duty instead of pretending it does not have anything to do with a fiduciary.

Moreover, all the major cases, including

Wood

and

FirstRand

, find a fiduciary duty as well as

a disinterested one. The fiduciary duty is wider, but only because the disinterested duty is a

fiduciary duty for specific purposes. Equity can therefore accommodate the common law.

One key benefit of the tort of bribery for claimants is that it is easier to prove as it

only requires knowledge that the payee is an agent or fiduciary or owes the disinterested duty.

But this primary liability tort is a result of using outdated principles of knowing rather than

dishonest assistance, and ease of use for claimants is no justification for any law. For coher-

ence and clarity within secret commissions and with equitable principles generally regarding

accessory liability, fusion would be a better result. Dishonest assistance also has the benefit of

disgorging any secondary profits made as a result of a bribe which is not available at common

law.

162

A further benefit of it being a breach of fiduciary duty is that it permits proprietary

claims as a constructive trustee. It would also create coherence with regard to half-secret com-

missions, as there would only be one claim. Given the current incoherence, it is illogical to

have two separate causes of action and different remedies for the same wrong. Not only are

equitable remedies already available for the tort, but equity has the flexibility to accommodate

the common law, as opposed to the other way round.

Another justification for requiring dishonesty in accessory liability is that fewer lenders

will be liable in any brokerage case. We argue in Section VI that this is desirable as a matter

of policy. As a summary, we propose that the tort of bribery should be subsumed into a breach

of fiduciary duty. The result is that both secret and half-secret commissions are included

within the scope of a breach of fiduciary duty if the disclosure is insufficient to obtain the

consent of the principal. A payee is primarily liable for breach of fiduciary duty, and a payer

is liable as an accessory to the breach. The standard for accessory liability is dishonesty and

requires evidence of dishonesty.

159

Heydon, Leeming and Turner (n 47).

160

ibid.

161

Mahesan

(n 2) (Lord Diplock).

162

Novoship

(n 21) [84].

Cambridge Law Review (2025) Vol 10, Issue 1

VI. SHOULD A FIDUCIARY DUTY BE IMPOSED?

We agree with the Court of Appeal in

FirstRand

that a fiduciary duty s hould be imposed in

the three cases therein. However, we disagree with the way in which they determine that a

duty is imposed. They determine that the duty arises from the parties’ status as credit brokers.

This is a presumption that the credit brokers must rebut.

163

With respect, we suggest that these

duties, whether under common law or equity, should be applied more carefully. Ad hoc fi-

duciary duties only arise consensually, based on the undertaking made. Therefore, they do

not apply to situations where no such undertaking has been ma de and to brokers generally.

The ad hoc approach is better than a presumption as it has a stronger basis in law; it makes

brokers liable when they have actually made the undertaking, which respects the autonomy

of individuals and when customers are particularly vulnerable, and it means that most broker-

ages will reflect the commercial reality which we will detail further below.

As argued, a fiduciary duty is defensible as a matter of law, but whether a fiduciary

duty is appropriate as a matter of policy can be discussed separately. Three policy concerns

we have identified include the protection of consumers, the facilitation of transactions, and

the incentives governing both parties. These will inform our conclusions on the desirability of

the decision in

FirstRand

and our proposal that breaches of fiduciary duties should be the

sole action in relation to bribes. We begin by discussing three financial effects of the decision.

A. THREE FINANCIAL EFFECTS

There are three financial effects which are, in our opinion, issues caused by the deci-

sion in

FirstRand

as presently constituted. These are unintentional effects of the judgment.

Having fiduciary duties be ad hoc rather than based on a presumption reduces the number

of brokers that are liable. This reduces the impact of the following financial effects.

First, it requires lenders and other financiers to seek disclosure of whether the com-

mission was disclosed to the principal. In order to avoid liability on their own part, they must

incur search costs.

164

B rokerages make their cases to financiers by saving them these very

search costs. This disincentivises using commission as an automated searching process by

forcing disclosure. The brokerage uses commission to chase perpetually what the financiers’

search role would otherwise be. Duplicating the very costs that the brokerage aims to save will

damage motor finance brokerage. Consumer protection is based on advancing consumers’

interests; this case may thus fall into the trend predicted by Briana Chang and Martin Szy-

dlowski,

165

that, whilst the quality of information available to a consumer may improve, con-

sumer results may not. If the decision is at least in part justified by consumer expectations or

protections, as one of the policy concerns that we have identified, then it must be re-examined.

Secondly, the decision tolerates disclosed commissions. Its eff ect, assuming all com-

missions are fully disclosed, is to shift commission costs onto brokerages and then onto finan-

ciers. This would be sustainable if financiers had no alternative, but they do. Consumers

prefer cheaper brokers, all other things being equal. As long as the customer is paying some

element of this commission at some point, they have very little reason to opt into a commis-

163

FirstRand

(n 5) [87], [100].

164

ibid [128], [159], [168].

165

See Briana Chang and Martin Szydlowski, ‘The Market for Conflicted Advice’ (2020) 75 The Journal of Finance 867.

Repairing the English Civil Law of Bribery

sion where a cheaper option exists. This cost, previously paid by consumers, shifts onto fi-

nanciers where commission remains at all; brokerages absorb it otherwise. A race to the bot-

tom likely emerges, where no individual consumer wants to pay a commission. This is not a

problem in and of itself. If this were a simple two-party relationship of payer versus payee,

there would be no issue. However, given the presence of financiers, one should consider what

is likely to occur next. As Roman Inderst and Marco Ottaviani observe, ‘[d]isclosure unam-

biguously reduces the equilibrium level of commissions’,

166

meaning that this kind of market

activity lessens.

Brokerages depend on commissions, at least, in contrast to financiers. Commissions

incentivise brokerages to pair consumer and financier accurately in a deal that benefits both,

plus brokerage cos ts. This adds information, which other tools, like bid-ask spreads, order

flow data, and historical trading patterns, may not completely capture. Commissions capture

data hidden beyond these more precise tools, with tighter portfolios, into price. Both financier

sentiment and the urgency of consumer demand are difficult to pin down with such ni che

tools; both are more neatly but implicitly demonstrated by commission. Other models, like

fixed brokerage fees or subscription models (the second is difficult to imagine in the motor

finance market in any case), do not provide the same real-time updates to all parties involved.

Furthermore, commissions seem to behave differently when quality differs across markets.

Alexandre de Cornière and Greg Taylor’s research suggests that, whilst the removal of biased

advice will help consumers in lower quality markets, it may injure consumers in higher quality

markets.

167

In higher quality markets, biased advice given by a brokerage incentivises their

counterparties to match the consumer’s lofty expectations, though not so in lower quality

markets. A commission for selling a Ferrari is not the same as a commission for selling a

Volkswagen. The law is an inappropriate forum in which to draw this distinction; however, so

far as this ruling is premised on consumer protection, this issue must be noted. Similarly,

Shubhranshu Singh’s research suggests the possibility of a competitive market in bias.

168

Finally, lenders can respond more easily and effectively to changes in commission

than consumers, meaning that they may choose to stop providing motor finance. A commis-

sion in one place is not a commission in all places. Commissions have different effects de-

pending on the product that they concern. George A Akerlof’s seminal paper hints at this

difference, though from the point of view of discerning between qualities.

169

Cars are expen-

sive. Consumers often want a specific model or to choose from a limited set of models. The

relevant set of consumers needs a car or at least strongly desires one. However, the same is

not true from the financier’s perspective. T here is little reason to presume, at least from the

outside looking in, that motor finance loans are necessary to the operation of a given financier

or that they radically outperform any other kind of finance. Motor finance can, as an asset on

a balance sheet, be bundled, traded, and speculated upon like any other, regulations permit-

ting. Financiers can trade loans far more easily than consumers can cars. The two effects

described above disincentivise the financier from engaging in motor finance brokerage. It is

both easier for the financier to withdraw from the market than the consumer, and he has

166

Roman Inderst and Marco Ottaviani, ‘Competition through Commissions and Kickbacks’ (2012) 102 American Eco-

nomic Review 780, 781. Equilibrium level is the level of commission where the market clears and where supply and

demand meet.

167

See Alexandre de Cornière and Greg Taylor, ‘A Model of Biased Intermediation’ (2019) 50 RAND Journal of Eco-

nomics 854.

168

See Shubhranshu Singh, ‘Competition in Corruptible Markets’ (2017) 36 Marketing Science 361.

169

See George A Akerlof, ‘The Market for “Lemons”: Quality Uncertainty and the Market Mechanism’ (1970) 84 The

Quarterly Journal of Economics 488.

Cambridge Law Review (2025) Vol 10, Issue 1

more reason to do so. Santosh Anagol, Shawn Cole and Shayak Sarkar demonstrated that

sellers prefer products where they do not have to disclose commissions.

170

We extrapolate this

into market exits where the product is just another loan for lenders.

This imbalance matters because it determines who ultimately bears the cost of a legal

intervention which has policy implications. Consumers cannot exit motor purchases as easily

as financiers can exit motor finance. Warnings against this sort of mandatory disclosure have

been present in the literature for 13 years, sometimes explicitly in the UK context.

171

By failing

to account for this, the ruling risks making motor finance less competitive, more expensive,

or less available altogether. If we want motor finance to be available to consumers, lenders to

lend, and to incentivise transactions, then the effect of

FirstRand

is undesirable. Following our

approach to ad hoc fiduciary duties, the duty should be imposed in fewer circumstances,

requiring disclosure in fewer circumstances.

B. THE LIABILITY OF LENDERS

A complete implosion of the brokerage industry or model is unlikely. Our personal

concerns about aftereffects on brokerages are ultimately limited. The concerns that motivate

us, the response of the industry, and the Treasury’s intervention in this case, are the implica-

tions for widespread primary or accessory liability of lenders as a result of this ruling. If the

tort of bribery remains, lenders paying the commiss ion will be liable if they knew that the

payee owed a disinterested or fiduciary duty. Similarly, if accessory liability for breach of fi-

duciary duty is applied as it is in

FirstRand

, this knowledge suffices to be dishonest.

172

Our

proposals, as discussed above, deal with the issue in two ways: first, by removing the tort of

bribery, lenders will not be primarily liable without more; and secondly, we require that the

test of dishonesty for dishonest assistance be applied more stringen tly in line with other case

law on the issue. If knowledge does not suffice for primary liability or dishonesty, then far

fewer lenders will be liable.

Finally, we wish to comment on the Financial Conduct Authority (‘FCA’) rules in

relation to discretionary finance agreements from 2021. It would be easy to misunderstand

the breadth of those rules. They only banned agreements that specifically aligned the broker-

age commission with the interest rate payable by the consumer. This is not a comprehensive

ban of secret and half-secret commissions. Updated guidance on that topic was published with

the FCA’s Policy Statement (PS20/8).

173

Consumer Credit Sourcebook (‘CONC’) 4.5.3R re-

quires disclosure of some elements of the commission framework, but seems to require no

more than the law as presently constituted.

174

Therefore, the FCA rules leave our proposal

unaffected.

170

See Santosh Anagol, Shawn Cole and Shayak Sarkar, ‘Understanding the Advice of Commissions-Motivated Agents:

Evidence from the Indian Life Insurance Market’ (2015) Harvard Business School Working Paper 12-055

accessed 30

March 2025.

171

Inderst and Ottaviani (n 166) 782.

172

FirstRand

(n 5) [128].

173

Financial Conduct Authority, ‘Motor Finance Discretionary Commission Models and Consumer Credit Commission

Disclosure – Feedback on CP19/28 and Final Rules’ (Policy Statement PS20/8, July 2020)

tion/policy/ps20-8.pdf> accessed 15 December 2024.

174

Financial Conduct Authority,

FCA Handbook

(2024)

book/CONC/4/5.html#DES18> accessed 15 December 2024.

Repairing the English Civil Law of Bribery

VII. CONCLUSION

FirstRand

should have applied the law differently in two ways. First, we argue that fiduciary

duties should be owed by credit brokers in fewer circumstances. We agree with the Court of

Appeal in

FirstRand

that a fiduciary duty should be owed in the three cases. However, we

disagree that this should arise as a presumption out of their status as credit brokers. Ad hoc

fiduciary duties are consensual and should be applied carefully based on the undertakings in

a relationship. The relationship itself only affects how undertakings are understood; it does

not create undertakings.

Secondly, accessory liability for breach of fiduciary duty should strictly apply the test

for dishonesty.

FirstRand

essentially applies a test of knowledge or, on an alternative interpre-

tation, it applies the wrong test of dishonesty or applies it incorrectly. The source of this in-

consistency is

Hurstanger

which dispenses individual justice in the case of a vulnerable

consumer but is a creature of its facts. Dishonesty is consistent with the remainder of the law,

whereas knowledge is not.

We also propose fusing the tort of bribery into a breach of fiduciary duty. The law

should not have two answers to the question of liability in bribery without good reason. The

reason is not a difference in duty. The disinterested duty in

Wood

is just a fi duciary duty

modified by the undertaking, so the disinterested duty can be accommodated in equity. Con-

sistency and coherency should prevail; the desirability of these qualities in a legal system is

uncontroversial.

However, coherency and consistency only mean that we must choose one of the two;

it does not dictate choosing equity. To begin with, there is a wider range of remedies available

in equity, including a p roprietary remedy. More importantly, equity provides a result that is

better from a policy perspective based on the policy factors of consumer protection, facilitat-

ing finance, and incentivising transactions. Treating the disinterested duty as a fiduciary duty

means that more careful analysis is applied due to the entire body of fiduciary law being rele-

vant. This careful application of the facts when looking at the undertakings made and the

nature of the relationship means that fewer credit brokers will be treated as fiduciaries. This

better reflects the underlying transaction of sale in car cases.

An equitable action also reduces the number of lenders that are liable. This is because

the tort of bribery only requires knowledge for a lender to be primarily liable and equity

requires dishonesty for a lender to be liable as an accessory. This, combined with a more

careful application of dishonesty, means that fewer lenders will be liable. Lenders and finan-

ciers will abide by a situation where the risk of accessory liability outweighs the utility of bro-

kerages. There is no prima facie reason why financiers cannot operate and offer these

products themselves without the involvement of brokerages. The only reasons to do so, from

their point of view, are to save time, extrapolate demand, and simplify problems. If financiers

veto the use of brokerages, then consumers lose out too.

We hope that our observations are timely and that our reform to

FirstRand

will be

ordained by the Supreme Court to establish a more coherent and less punitive position. Sub-

sequent debate on the nature of brokerage and its interaction with agency is for Parliament.

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