Abstract/Summary

Interest in the common law actions against givers and takers of bribes and secret commissions was recently revived by the Court of Appeal in Wood v Commercial First Business Ltd [2021] EWCA Civ 471, [2021] 3 W.L.R. 395, a case of a mortgage broker who took a secret commission. They offer the possibility of a more flexible liability not requiring a fiduciary relation but instead only a “duty to be impartial and to give disinterested advice, information or recommendations” (at [102]). This may offer a viable route to liability over novel relations such as non-fiduciary agents, brokers and other non-fiduciary relations.However, the balance of evidence suggests the origin of these actions was merely the adoption of equity into the common law – a “fusion fallacy”. Moreover, an examination of their development and that of their counterpart, the equitable fiduciary duty of loyalty, shows that while the common law actions once offered significant procedural and substantive advantages, these have now fallen away and only increased complexity remains. Conversely, the equitable actions have become more flexible and could now accommodate a relation not generally fiduciary, imposing only a narrower prohibition against taking bribes and secret commissions. Consequently it would be better to abolish the common law actions or assimilate them into the equitable ones.