Summary

The first defendant had not participated in a business venture with the first claimant as his professional and personal adviser, and therefore did not owe him any fiduciary or equitable duties. In any event, the claim was statue barred.

Facts

Claim and counterclaim by the participants of a business venture to determine the extent (if any) to which each was liable to contribute to the other in respect of sums paid out by them for certain guarantee liabilities, and a further claim by the first claimant ('M') that the first defendant ('F') owed him a fiduciary duty of care. The first defendant was a chartered accountant. The remaining defendants were his partners in an accountancy practice. The claimants and the defendants had established a group of companies to exploit a catering venture. M and F guaranteed the group's liabilities to the bank. Following the liquidation of the group, M and F discharged the group's debt between them. M then sought to recover the sums which he had paid to the bank from F on the grounds that F was M's professional and personal adviser; that F had owed M the fiduciary and/or common law duties owed by such an adviser; and that M was entitled to equitable compensation for F's breaches of those duties. M also contended that he had been induced to enter into his guarantee by the presumed undue influence of F. F pleaded limitation, to which M responded by alleging that material matters had been deliberately concealed from him, such that he was entitled to the benefit of s.32 Limitation Act 1980. In addition, F counterclaimed for a declaration that the claimants and he were obliged to contribute equally to the group's indebtedness to the bank, which would reduce his share from one half to one third.

Held

(1) The court was entirely satisfied that M had been a full and active participant in all the principal decisions which had led to the guarantee exposure with which he and his wife, the second claimant, were ultimately faced. (2) The court was equally satisfied that F had not participated in the venture as M's adviser, and that M had not looked to him for any such advice. Both M and F had participated on an equal footing. (3) It followed that the allegations of breach of duty and/or undue influence were not made out. (4) Equally clearly, the claim was in any event statue-barred, as, in accordance with the finding at (1) above, there was nothing that F had concealed from M. (5) F's claim for a contribution from M's wife was "remarkably unattractive" given that she, to F's full knowledge, had played no part whatsoever in the business. M had represented one side of the financial interests in the venture and F had represented the other. It was appropriate, therefore, that they should bear the guarantee liability equally.

Claim dismissed.