Case Digest |
Subject: Civil procedure Other related subjects: Company law
Keywords: Common interest; Fiduciary relationship; Representative actions; Undue influence; Unincorporated associations
Summary: Unincorporated association; undue influence; representative action
Abstract: There is no reason in principle why a special fiduciary relationship cannot exist between a member of an unincorporated association and the association giving rise to a claim for undue influence, in relation to those members at the time when the claim arose. It is an essential condition of bringing a representative action that all the persons represented should have the same interest. P brought an action against D1 and D2 as representing the present members of "Opus Dei," an unincorporated association forming an organisation within the Roman Catholic Church with branches in many countries, with separate sections for men and women. While working in Kenya he paid a sum of over GBP 16,000 from his salary to "Opus Dei" by way of gifts, and a further sum to a bank account in the joint names of himself and C and B, two fellow members, who had drawing rights on the account, and all the moneys were then paid out to D3, an English charity controlled by "Opus Dei." He alleged that their sums were obtained by way of undue influence and ought to be set aside and repaid. D1 claimed to have the claim struck out on the ground that the action was not properly constituted as a representative action within Rules of the Supreme Court# Ord.15, r.12, that it disclosed no reasonable cause of action and that it was frivolous and vexatious.
Held, that (1) there was no reason why a special fiduciary relationship could not exist between P and an unincorporated association, and P had an arguable case that such existed between him and the persons who were members at the relevant dates; but since the statement of claim was formulated as a claim against all the present members, many of whom were not members at the relevant dates and who were not capable of benefiting from the payments, and D1 had not personally done anything wrong or benefited, no reasonable cause of action was disclosed against him or the present members on whose behalf he was being sued (Allcard v Skinner (1887) L.R. 36 Ch. D. 145 and Tufton v Sperni [1952] 2 T.L.R. 516 considered); it was an essential condition of bringing a representative action that the persons represented had the same common interest. Since there might be separate defences open to members who were female or resident in different countries, the action was not properly constituted under the rule; failure to comply with it was not a mere irregularity which could be waived by the entry of an unconditional appearance, and accordingly all reference to D1 must be struck out and the action dismissed against him; (2) the court also ordered all proceedings against D3 to be stayed until the joinder of C and B or further order, since they were prima facie entitled with P to any relief, and had to be made parties to the action in the absence of any sufficient evidence justifying the giving of leave to the contrary under RSC, Ord.15, r.4(2).
Judge: Slade, J. |
All Cases Cited |
Estate of Brocklehurst (Deceased), Re
[1978] Ch. 14; [1977] 3 W.L.R. 696; [1978] 1 All E.R. 767; (1977) 121 S.J. 633; CA (Civ Div)
Lloyds Bank Ltd v Bundy
[1975] Q.B. 326; [1974] 3 W.L.R. 501; [1974] 3 All E.R. 757; [1974] 2 Lloyd's Rep. 366; (1974) 118 S.J. 714; CA (Civ Div)
J Bollinger SA v Goldwell Ltd (No.1)
[1971] F.S.R. 405; [1971] R.P.C. 412; Ch D
Craig (Deceased), Re
[1971] Ch. 95; [1970] 2 W.L.R. 1219; [1970] 2 All E.R. 390; (1970) 114 S.J. 171; Ch D
Wenlock v Moloney
[1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871; (1965) 109 S.J. 496; CA
Campbell v Thompson
[1953] 1 Q.B. 445; [1953] 2 W.L.R. 656; [1953] 1 All E.R. 831; (1953) 97 S.J. 229; QBD
Tufton v Sperni
[1952] 2 T.L.R. 516; [1952] W.N. 439; CA
Hardie & Lane Ltd v Chiltern (Tort)
[1928] 1 K.B. 663; CA
London Association for the Protection of Trade v Greenlands Ltd
[1916] 2 A.C. 15; HL
Mercantile Marine Service Association v Toms
[1916] 2 K.B. 243; CA
Walker v Sur
[1914] 2 K.B. 930; CA
Allcard v Skinner
(1887) L.R. 36 Ch. D. 145; CA |
All Cases Citing |
Mentioned by
Smithkline Beecham Plc v Avery
[2009] EWHC 1488 (QB); [2011] Bus. L.R. D40; Official Transcript; QBD
Mentioned by
Irish Shipping Ltd v Commercial Union Assurance Co Plc (The Irish Rowan)
[1991] 2 Q.B. 206; [1990] 2 W.L.R. 117; [1989] 3 All E.R. 853; [1989] 2 Lloyd's Rep. 144; (1990) 87(5) L.S.G. 39; (1990) 134 S.J. 426; Times, May 5, 1989; CA (Civ Div)
Mentioned by
News Group Newspapers Ltd v Society of Graphical and Allied Trades (SOGAT) 1982
[1987] I.C.R. 181; [1986] I.R.L.R. 337; (1986) 136 N.L.J. 893; Times, August 1, 1986; QBD
Mentioned by
Catlin v Cyprus Finance Corp (London) Ltd
[1983] Q.B. 759; [1983] 2 W.L.R. 566; [1983] 1 All E.R. 809; (1983) 80 L.S.G. 153; (1982) 126 S.J. 744; Times, October 27, 1982; QBD |
Significant Legislation Cited |
Rules of the Supreme Court Ord.15, r.12Rules of the Supreme Court Ord.15, r.4(2) |
Books |
Goff & Jones the Law of Restitution 7th Ed.
Chapter: Chapter 11 - Recovery of Benefits Conferred Under Undue Influence
Documents: Section 3 - Presumed Undue Influence
Jackson & Powell on Professional Liability 6th Ed. Incorporating Fourth Cumulative Supplement
Chapter: Chapter 2 - Duties and Obligations
Documents: Sub-section (ii) - Undue Influence and the Burden of Proof
Jackson & Powell on Professional Liability 6th Ed.
Chapter: Chapter 2 - Duties and Obligations
Documents: Sub-section (ii) - Undue Influence and the Burden of Proof
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