## Facts

- Mr. Mothew, a solicitor, acted for both Bristol and West Building Society (the lender) and for the borrowers (a husband and wife) in a property transaction.
- The building society required confirmation that the purchase would be completed using the buyers’ personal funds, not with funds from a secondary mortgage.
- Mr. Mothew mistakenly assured the building society that the borrowers had the required personal funds.
- The inaccurate assurance led to financial loss for the building society when the borrowers defaulted.
- The main issue was whether Mr. Mothew’s conduct constituted a breach of fiduciary duty or a breach of his duty of skill and care.

## Issues

1. Whether Mr. Mothew’s error amounted to a breach of fiduciary duty or merely a breach of the duty to exercise reasonable skill and care.
2. Whether acting for both the lender and borrowers without conflict or with informed consent was permissible under fiduciary principles.
3. What remedies are appropriate for breaches of fiduciary duty versus breaches of skill and care.

## Decision

- The Court of Appeal held that Mr. Mothew’s conduct, while negligent and a breach of contract, was not a breach of fiduciary duty because it did not involve disloyalty or infidelity.
- The inaccurate assurance was a result of an error in judgment and did not indicate a lack of loyalty.
- The court clarified that not all breaches by a fiduciary are breaches of fiduciary duty; only conduct involving a failure of loyalty or good faith qualifies.
- The appeal was allowed, and summary judgment based on breach of fiduciary duty was rejected.
- The case was remitted for assessment of damages for breaches of contract and negligence.

## Legal Principles

- Fiduciary duty is defined by an obligation of loyalty: to act in the best interests of the principal, not to profit secretly, and to avoid conflicts of interest unless there is informed consent.
- The obligation of skill and care is distinct from fiduciary duty; incompetence alone does not constitute a breach of fiduciary duty.
- A fiduciary can act for two principals with potentially conflicting interests only with the fully informed consent of both.
- Remedies for breach of fiduciary duty (such as constructive trust) differ from those for breach of skill and care (damages based on common law principles).
- The distinction between disloyalty (breach of fiduciary duty) and negligence (breach of skill and care) is critical in determining liability and remedy.

## Conclusion

The Court of Appeal in Bristol & West Building Society v Mothew established that only conduct involving disloyalty or infidelity constitutes a breach of fiduciary duty; merely performing duties incompetently or negligently, without disloyal intent, gives rise to liability in contract or negligence, not under fiduciary law, and attracts compensatory damages rather than equitable remedies.


Bristol & West Building Society v Mothew [1998] Ch 1