The agent’s fiduciary duties: FHR European Ventures LLP & Ors v Mankarious & Ors
FHR European Ventures LLP & Ors v Mankarious & Ors  EWHC 2308 (Ch) provides a useful illustration of the way in which the English courts treat the acceptance by an agent of secret commission as a breach of the agent’s fiduciary duty towards the principal. It sheds light on the extent of knowledge which the principal must possess before he can truly be held to have “consented” to the retention of such a payment by the agent. It also focuses on the wider impact on the agent, airing issues such as whether the agent can recover from the principal an allowance for skill and effort in obtaining the profit which he has to disgorge to the principal and the impact on commission earned in other, unconnected transactions. Finally, it illustrates the fact that in English law the agent holds such funds on constructive trust for the principal.
The party who was alleged to have retained the secret profit was Mankarious, who had established a business venture, Cedar Capital Partners (‘Cedar’). He had acted on behalf of a consortium in their purchase of a hotel in Monte Carlo, for a price of 215 million euros. After the consortium had purchased the hotel it was discovered that the agent had accepted a commission payment from the sellers of the hotel amounting to 10 million euros. The consortium brought the relationship with the agent to an end immediately, and refused to pay any of the agent’s outstanding invoices relating to work which the agent had carried out on the consortium’s behalf. The action was raised by the consortium against the agent requiring disgorgement of the alleged secret commission to the consortium, and seeking resolution of other issues between the parties such as payment of outstanding invoices.
Mr Justice Simon began his discussion of the applicable law with reference to what has become a highly influential case on fiduciary duties in English law, Bristol and West BS v Mothew ( 1 Ch 1). He quoted from the case, including the following words, encapsulating the idea of the agent’s fiduciary duty (at 18, quoted by Mr Justice Simon at para 74):
“The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations…where the fiduciary deals with his principal. In such a case he must prove affirmatively that the transaction is fair and that in the course of the negotiations he made full disclosure of all facts material to the transaction.”
Authorities on the nature of the principal’s consent were reviewed. Significantly, it was confirmed that the burden of proving full disclosure rests on the agent (para 78, quoting from Bowstead & Reynolds, Agency, para 6-057). It was also acknowledged that the factual nature of these enquiries mean that it is difficult to use cases as precedents (para 81). Finally on this issue, the court considered whether, where the agent has more than one principal, disclosure to one principal can constitute disclosure to all. This raises the issue of authority: one principal may have actual or apparent authority to receive such information from the agent on behalf of the other principals.
The agent can be made an allowance for the skill and effort which he expended in obtaining the profit which he has to disgorge. This principle was recently explored by the Court of Appeal in Imageview Management v Jack  EWCA Civ 63 at . Imageview, the subject of an earlier blog entry available here:
http://www.law.ed.ac.uk/ecclblog/blogentry.aspx?blogentryref=7912. In that case, the court had approved the statement of this principle in Snell’s Equity, 31st edition, §7-131:
“…a fiduciary who has acted in breach of fiduciary duty and against whom an account of profits is ordered, may nevertheless be given an allowance for skill and effort in obtaining the profit which he has to disgorge where ‘it would be inequitable now for the beneficiaries to step in and take the profit without paying for the skill and labour which has produced it.’ [The quotation is from the judgment of Wilberforce J in Phipps v Boardman  1 WLR 993, 1018)]. The power is exercised sparingly, out of concern not to encourage fiduciaries to act in breach of fiduciary duty. It will not likely be used where the fiduciary has been involved in surreptitious dealing…although, strictly speaking it is not ruled out simply because the fiduciary can be criticised in the circumstances. The fiduciary bears the onus of convincing the court that an accounting of his or her entire profits is inappropriate in the circumstances.”
On the facts it was held that the agent owed duties to each of the principals severally, meaning that the fully informed consent of each one would have been required before the agent could have retained the secret profit. Unless this consent was obtained “it could not receive and retain the 10 million euros commission from the Vendors.”
The evidence suggested that the certain of the members of the consortium may have been aware or suspected that the agent was receiving commission from the sellers. Mr Justice Simon held (at para 104) that it was “…incumbent on the Cedar to inform BoS, not only that it was receiving a Commission payment but the amount, 10 million euros. It was an exceptionally large sum in proportion to the rewards that Cedar was likely to be able to negotiate from its acquisition work for the purchasers…and it was a significantly larger percentage than would have been expected.” The agent failed to discharge the burden of proving that each of the companies in the consortium had the requisite knowledge.
Nor was this the type of case in which it would be appropriate to make an equitable allowance to the agent (para 108). Numerous opportunities had arisen for the agent to inform the principals, but none of these were taken. The agent was, however, entitled to retain the commission from work performed in relation to another three hotels, presumably on the basis that these other transactions were severable from the tainted transaction (Lord Hunter in Graham & Co v United Turkey Red Co 1922 S.C. 533 at 553, relying on English authority, indicates that a similar priniciple of severability exists in Scots law).
Although this case is useful for Scots lawyers, a few issues should be borne in mind about the differences between Scots and English law. Where the agent is in material breach of the agency agreement and yet seeks payment for his skill and effort, the situation moves from a contractual one to an enrichment one. Given the differences between enrichment law in Scotland and England, this means that, in a Scottish case, a pursuer would be well advised to use Scottish rather than English cases as precedents. The same issue was considered in the case of Graham & Co v United Turkey Red Co (1922 SC 533). The breach in that case was acting for another principal when that was specifically prohibited by the written agency agreement. Although the agent was entitled to commission for the period during which he was not in breach, he was not entitled to commission once he placed himself in material, or “flagrant,” breach (per Lord Ormidale at 548). According to Lords Salvesan and Ormidale, that was not, however, the end of the line for the agent. He could claim remuneration even after he had placed himself in material breach (at 546 and 549 and see Ramsay & Son v Brand (1898) 25 R. 1212 and Steel v Young 1907 S.C. 360). As an enrichment remedy, this claim would only be open to the agent (as contract-breaker) if the principal had opted to rescind in response to the agent's material breach. The onus lay upon the agent to establish that he was entitled to commission (per Lord Salvesan at 546). If he successfully established that the principal had gained from his services during this time, the measure of recovery would not be quantum meruit the agent, but rather quantum lucratus the principal (i.e. measured not by reference to what the agent deserves, but rather by reference to the principal's enrichment (per Lord Salvesan at 546 and Lord Ormidale at 550). Thus it is the law of unjustified enrichment and not the law of contract that potentially offers the agent a remedy for remuneration where he has placed himself in material breach of contract. It should also be noted for the avoidance of doubt that there is no implied term that an agent is not entitled to work for another principal: only an express term can limit the agent’s activities in this way (Lothian v Jenolite 1969 SC 111).
The fact that it was held in this case that the agent held the secret profit on constructive trust for the principals has already been noted. Whether a constructive trust exists in Scots law, and would apply to the agent in this type of situation is a controversial issue, and one that cannot be analysed here. Those seeking enlightenment on the constructive trust in Scots law should consult two articles by Professor George Gretton: Constructive Trusts: Part I (1997) Edin.L.R. 281 and Part 2 (1997) Edin.L.R. 408.