It could be said that a fiduciary relationship is found where one party reasonably places his trust and reliance in another party to act in a loyal manner conducive to his best interests. However, useful though that definition could prove, Jill Martin may be being more realistic where she says that 'it may sometimes appear that the defendant may classified as a fiduciary, or not, in order to achieve the desired result.' As such the judiciary's approach to the fiduciary relationship might be best understood as an example of a purposive approach to the law where they have attempted to give effect to the spirit of the law as opposed to any strict definition.
Under the rule in Keech v Sandford it is assumed that a fiduciary acts voluntarily and cannot charge for their time and trouble , but the law has long recognised that some fiduciary relationships require remuneration of some sort and it would be nave to suppose otherwise. In Robinson v Pett it was held that if a fiduciary could show a specific entitlement to remuneration they would receive it and similarly a fiduciary will receive any out of pocket expenses incurred doing business in their fiduciary capacity . If in a trust situation the beneficiaries are all sui juris and there is no possibility of undue influence they may agree to the trustee being paid. Under s29 of the Trustee Act 2000 a trust corporation is entitled to receive reasonable remuneration if there is nothing specifying otherwise, and a professional trustee who is neither the sole trustee, nor a corporation, may also receive such remuneration if all the other trustees consent in writing. The court also has an inherent jurisdiction to order payment of fiduciaries if it feels that such payment is reasonable
In most fiduciary relationships where remuneration is involved there will be an express clause, either in the trust instrument (which professional trustees can insert following the Trustee Act 2000), the articles by through which one party becomes a fiduciary, or in the contract of employment as in the case of a solicitor, thus circumventing the rule that a fiduciary may not make a profit.
BY the rule of Equity, it clearly states that: "It is an inflexible rule of Equity that a person in a fiduciary position is not, unless expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict."
With Yardley's case, he violated the rule of Equity wich includes that trustee's have a duty not to make an unauthorised profit. However it is felt that the rigorous application of the rule can inflict considerable hardship, often in cases where it may seem somewhat unjust to do so.
Unauthorized profit is defined as unlawful use of money or assets beyond the original agreed upon terms or purpose of the money or asset. It is necessary to investigate if Yardley purchased any properties or assets during the time of his departure from the company including the amounts of each asset or property.
The basic rule that fiduciary is not allowed to make an unauthorised profit was established in the case of Yardley v BALIOL where there was a dispute over the company money entrusted to YArdley for wage management of the same company. In this case a trustee held the money on trust for a