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Lord Nicholls of Birkenhead J:
The proper role of equity in commercial transactions is a topical question.
Increasingly, plaintiffs have recourse to equity for an effective remedy when the person in default, typically a company, is insolvent.
Plaintiffs seek to obtain relief from others who were involved in the transaction, such as directors of the company or its bankers or its legal or other advisers.
They seek to fasten fiduciary obligations directly onto the company's officers or agents or advisers, or to have them held personally liable for assisting the company in breaches of trust or fiduciary obligations.
This is such a case.
An insolvent travel agent company owed money to an airline.
The airline seeks a remedy against the travel agent's principal director and shareholder.
Its claim is based on the much-quoted dictum of Lord Selborne LC, sitting in the Court of Appeal in Chancery, in Barnes v. Addy [1874] LR 9 Ch. App. 244 at pp. 251-252:
That responsibility (of a trustee) may no doubt be extended in equity to others who are not properly trustees, if they are found ... actually participating in any fraudulent conduct of the trustee to the injury of the cestui
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