Chasing will-o’-the-wisp: the English courts’ impossible quest for ‘certainty’ in constructive trusts over bribes

Abstract

After years of uncertainty, FHR v Mankarious has sought to impose a ‘simple answer’ in relation to remedies regarding bribes made in breach of fiduciary duty, namely that a constructive trust will always be imposed. The English approach can be contrasted with the approach in many other common law jurisdictions, including Australia and the USA. It is suggested that the English quest for ‘certainty’ and a ‘simple answer’ is a will-o’-the-wisp, which will never be found. ‘Recalcitrant experiences’ or specific fact scenarios will always undermine the background justifications for the general rule expressed by the UK Supreme Court.