Defining the Boundaries of Personal and Proprietary Relief Against Secret Commissions

It is settled law that a fiduciary is precluded by virtue of his office from making personal gains. This is part of the wider principle that those who assume the role of a fiduciary must be disinterested in any benefits or opportunities that are inconsistent with their duties to the principal. However, controversy surrounds the appropriate remedial response where an employee receives unauthorised gains in the form of bribes and secret commissions to subvert the employee's duty to his employer. The classic authority of Lister and Co v Stubbs provides a restrictive answer. The principal is confined to a personal claim against the delinquent fiduciary. The bribe money is deemed the property of the recipient and although he is liable to account for this sum, the resultant obligation is only a debt.