Fiduciary Duties, Secret Profits, and the Illegality Defence: Crown Prosecution Service v Aquila Advisory Ltd [2021] UKSC 49

Purewal, Anita (2022) Fiduciary Duties, Secret Profits, and the Illegality Defence: Crown Prosecution Service v Aquila Advisory Ltd [2021] UKSC 49. Trusts & Trustees, 28 (2). pp. 125-131. ISSN 1363-1780

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Abstract

CPS v Aquila Advisory Ltd has provided a welcomed judgment on the application of the illegality defence in the context of secret profits accrued in breach of fiduciary duties. The judgment clarifies the priority to be given to constructive trusts over unauthorised fiduciary profits in the face of CPS confiscation orders, and examines the interrelationship between the rules of attribution and the application of the illegality defence today, namely whether a director’s unlawful intention can be attributed to their company to prevent the company, on illegality grounds, from exercising a proprietary interest over the secret profits accrued.