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Vol 24 No 9 Sept/Oct 2019

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The Anti-Suit Injunction

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Commercial Contracts and Trusts: The Legal Issues on Making Decisions


ISBN13: 9781526511836
To be Published: April 2020
Publisher: Bloomsbury Professional
Country of Publication: UK
Format: Hardback
Price: £95.00



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)

  • Subjects:
    Contract Law, Commercial Law, Equity and Trusts
    Contents:
    Part 1: Introduction
    1. Introduction
    Part 2: 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 Purposes
    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