Sir Peter Gibson
A legal historian surveying the work of the English courts in the last few decades will have noted the marked decline in cases to do with formal trusts in family settlements or wills and yet the continued and indeed increasing frequency of cases involving trusts in other forms or other equitable obligations, often in a commercial context, and in particular involving the fiduciary obligations of those in whom trust or confidence is reposed, and the consequences of any breaches of those obligations. The presence of such traditional equity elements in the thinking of those conducting litigation may be one of the several reasons why at least since the mid-1980s the workload of the Chancery Division has been growing at a rate of over 10 per cent per annum compound. But it would be wrong to measure the importance of equity in the modern world by reference to a Division of the English High Court, as it is apparent from the reported cases that throughout the common law world the doctrines of equity continue, as the editors of Snell's Equity (29th edn., p. v.) put it, to show great vitality. The theme of the Colloquium was chosen in recognition of the continuing practical importance of equity in the law today.
It is at first blush surprising that the principles still governing the conduct of fiduciaries, even those involved in commerce, should be those devised in a now distant age when the Court of Chancery was concerned to impose high standards of prudent and conscientious behaviour on a trustee of a family settlement. That such principles are still relevant reflects the timeless acceptability of the principles, which are often mirrored in other jurisdictions owing nothing to the common law tradition, and more practically it reflects the considerable breadth of those principles. As Lord Upjohn pointed out in Phipps v. Boardman ( [ 1967] 2 A.C. 46, 123), 'rules of equity have to be applied to such a great diversity of circumstances that they can only be stated in the most general terms and applied with particular attention to the exact circumstances of a case'. One sees equity at its elastic pragmatic best -- or worst -- in the way that it deals with fiduciaries, because what the fiduciary is obliged to do or not to do will vary according to the particular type of fiduciary and the particular circumstances in question. The judge, frankly, enjoys the flexibility thereby afforded, anxious to do what he sees as justice in the case before him. For the practitioner, concerned to advise on and manage the conflicts of interest that so frequently arise, the uncertainty thereby engendered produces difficulties. Those difficulties may be compounded when the legislature intervenes in an area where the common law obligations otherwise obtain but omits to spell out the intended effect of that intervention on those obligations.