Commercial Contracts and Trusts: the legal issues on making decisions

By: David Pollard
ISBN: 9781526511836

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About Commercial Contracts and Trusts: the legal issues on making decisions

This is a topical area for the courts, which have moved to imply various limitations or tests on decision makers powers and when they can be challenged. This is made more difficult for lay users and lawyers alike in that implied restrictions are (by definition) not apparent from the words of the relevant contract itself. These limits are applied by the courts not just to fiduciaries (such as trustees or... Read more

About Commercial Contracts and Trusts: the legal issues on making decisions

This is a topical area for the courts, which have moved to imply various limitations or tests on decision makers powers and when they can be challenged. This is made more difficult for lay users and lawyers alike in that implied restrictions are (by definition) not apparent from the words of the relevant contract itself.
These limits are applied by the courts not just to fiduciaries (such as trustees or directors), but also to non-fiduciaries (eg banks and employers).

Recent case law includes:
· Pitt v Holt (SC) – trustee decisions (2013)
· Braganza (SC) – contractual discretions (2015)
· Eclairs (SC) – directors powers: proper purposes (2015)
· IBM UK Holdings v Dalgleish (CA) – employer powers under pension plans (2017)
· British Airways (CA)– pension plan – proper purposes (2018)

The book reviews the relevant doctrines of:
· Interpretation rules
· Proper purposes;
· Due consideration of relevant factors
· Full perversity (no reasonable decision maker)

Table of Contents

Part 1: Introduction
1. Introduction
Part2: General
2. Public Law Analogy in Private Law Discretions?
3. General Issues on Use of Public Law
4. Wednesbury Applied
5. Good Faith and Dishonesty
Part 3: Extent of Power- Construction
6. Construction – General
7. Express Limits on a Power
8. Construction Principles
9. Interpretation of Pension Schemes
Part 4: Looking At the Decision Maker- And Fetters on Discretion
10. Who Is The Decision Maker?
11. Trustee Discretions and Fetters
12. Statements of a No Fetter Rule
13. Fetters: Some Older Cases
14. The Fetters Rule Gets More Sensible: Three Modern Cases: Thorby; C Abra Estates and Firkin-Flood
15. Modern Position
16. Pension Schemes and Fetters
17. Fetters: Is Public Law Any Guide?
18. Fetters and Changes of Trustees
19. Fetters: Outside Parties
20. Fetters: Effect on Third Parties
22. Setting Policies or Guidelines?
23. Avoiding Fetter Issues
Part 5: Proper Purposes113
24. Proper Purposes: Introduction
25. Eclairs
26. The Proper Purpose Test
27. There Is No Literal “Best Interests” Rule
28. Purpose Test in Trust Law And Company Law
29. How Is The Proper Purpose Test Applied?
30. Can Proper Purposes Apply Where There Has Been A Failure To Act?
31. How Is The Decision Maker’s Purpose Worked Out?
32. Causation/More than One Motive or Intention
33. More Than One Decision Maker
34. Purpose Vs Motive?
35. Overlap With Need To Consider Only Relevant Factors?
36. Effect of Improper Exercise
37. Proper Purposes: Conclusion
38. Proper Purposes: Application To Pension Schemes: Introduction
39. Pension Scheme and Trustee Powers
40. Overall Purpose of a Pension Scheme – A Suggestion
41. Edge V Pensions Ombudsman
42. Pensions: Main Purpose Vs Sole Purpose?
43. Pension Trusts: Examples of the Application of the Proper Purpose Test
44. Amendment Powers/ Change of Principal Employer
45. Transfers-In
46. Transfers Out: Fletcher Challenge and Its V Hope
47. Investment
48. Early Retirement Reduction
49. Commutation Factors
50. Pension Increases
51. Winding-Up a Pension Scheme?
52. Regula Tor Powers
53. Trustees Exercising Powers Fairly
54. Proper Purpose: Overview
Part 6: Fiduciaries and “Best Interests?
55. Fiduciaries: Best Interests? Overview
56. Introduction
57. Why Does This Matter?
58. This Article Does Not Cover: Social Investment and Other Interests Points
59. Trustee, Directors and Discretions
60. Best Interests and Who Is a Fiduciary
61. UK Official Guidance
62. A Literal Best Interests Duty Is Dangerous
63. Literal Best Interests Duty: Imprecise and Unworkable
64. Cowan V Scargill (1984)
65. Interpreting Megarry V-C’s Judgment In Cowan V Scargill: Context Etc
66. Did Megarry V-C Invent The Duty For Trustees?
67. Lord Nicholls
68. MNRPF (2015): There Is No Literal “Best Interests” Rule
69. Express Contractual or Statutory Duty – Some English Cases
70. Overview
71. Problems with A Literal “Best Interests” Duty.
72. (1) Is Not A Freestanding Duty ‘ To Act’, But Instead A Limit on Powers
73. (2) Does Not Override Limitations in the Trust Instrument
74. (3) Does Not Override the Proper Purposes Test
75. (4) Should Be Seen As Subjective – What Did The Trustee Board Consider At The Time Would Be Likely To Promote The Success Of The Trust?
76. (5) There Is Always More That the Trustee Could Do
77. (5) Literally Would Impose a Retrospective Best Outcome Standard
78. Not a ‘Paramount’ Duty
79. Gives No Guidance on Who Is a Beneficiary/ How to Decide Between Beneficiaries
80. Some Cases After Cowan V Scargill
81. ‘Best Interests’ or Just ‘Interests’?
82. Best Interests/Success of the Trust Is Better
83. Proper Purposes Even Better?
84. Silence Is Louder Than Words: Cases That Do Not Mention A ‘Best Interest’ Duty When They Should
85. Directors’ Duties: Companies Act 2006, Si 72
86. A Positive Duty to Disclose? Item Software
87. UK Statutory Duties for Trusts and Directors
88. Ops Investment Regulations/ IORP Directive
89. Australia Statutory Intervention and Case Law
90. Conclusion
Part 7: Due Consideration of Relevant Factors
91. B Ragan Za – A Landmark Case
92. Braganza: The Decision
93. The Braganza Rationality Test
94. Who Is The Decision Maker?
95. Trustees and Braganza?
96. Pension Trustees and Public Law Following Braganza
97. Does Braganza Apply To All Commercial Discretions?
98. Nature of Discretion
99. Intensity of Review
100. First Limb – Process: Relevant Factors
101. Trustees And Relevant Factors: P Itt V H Olt Compared With Braganza?
102. Three Types of Relevant Factors: The Public Law Approach
103. Weight Given To Factors
Part 8: No Reasonable Decision Maker: Full Perversity
104. Braganza
105. Arbitrary, Capricious Etc
106. Timing for Irrationality?
107. What If One Reasonable Decision Maker Would Have Made The Same Decision?
108. Braganza Test Is A Limit On A Power?
Part 9: Braganza Rationality Tests: Interaction with the Proper Purpose Test
109. Braganza and MDTC/Contractual/Imperial Duty
Part 10: Further Issues
110. Multiple Decision Makers
111. Decision Maker Would Have Made The Same Decision Anyway?
112. Decision Maker Giving Reasons
Part 11: Remedies for a Failure?
113. Remedies
114. Reversal of the Decision
115. Damages or Equitable Compensation for Breach of Trust/Duty against the Trustee:
116. Claim against Third Party:
117. Removal of the Decision Maker
118. Exclusion Clause?
119. Overturning a Decision – Reference Back To Decision Maker
Appendix A: 12 Major Review Grounds for Trustee Decisions
What Is A Trustee Board Not Obliged To Do?
Appendix B – Casela Won the Nature of a “Discretion”
Discretions

Publishing Details

Publication Date: 9 April 2020
ISBN: 9781526511836
Binding: Hardback
Edition: 1

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