Fiduciary agent ordered to give account in common form

1 July, 2024

On 28 June 2024, Ian Karet, sitting as a Deputy High Court Judge (Chancery Division), handed down judgment in Moosa & Ors v Mawji [2024] EWHC 1638 (Ch).

The claimants, three South African businessmen, had contended that in July 2000 the defendant had been appointed as their agent for the purposes of managing a portfolio of properties and that, by virtue of that appointment, he owed them (personally) fiduciary, contractual and common law duties. The claimants further contended that, in these circumstances, the defendant was under an obligation to account to them for his dealings with the property portfolio and that he had not given a complete account in a number of material and significant respects. Accordingly, the claimants sought the remedy of an account in common form, an injunction and additional relief.

The defendant’s position was that he was never appointed as the claimants’ agent and owed them no fiduciary duties; but that in any case settled accounts had been rendered to them for most of the property investment projects. He also contended that even if he was in principle liable to account to the claimants then he should not be ordered to do so on the basis of limitation or laches.

The Court found for the claimants and ordered wide ranging relief. The Court also granted injunctive relief pending directions being given for the taking of the account.

The case is unusual as an account in common form, though an ancient form of remedy, is not frequently granted. The Court addressed the topic of limitation and laches in the context of a claim for an account in common form, considering the decisions in Coulthard v Disco Mix Club Ltd [2000] 1 WLR 707 and Henchley v Thompson [2017] EWHC 225 (Ch). The Court also affirmed the proposition that there are certain factors relevant to whether such an account should be ordered, including: (i) whether a claim following the account may itself be time barred; (ii) where the account is disproportionate or unlikely to be fruitful; (iii) whether the passing of time makes it difficult to account; (iv) whether the correct accounting party is before the court; (v) where information has been provided and further information is unlikely to be useful; and (vi) where the motivation for seeking the account is improper.

Finally, in reaching the conclusion that the defendant had been constituted as the claimants’ agent (and therefore fiduciary), the Court considered the recent Court of Appeal decision in Quantum Advisory Ltd v Quantum Actuarial LLP [2024] EWCA Civ 247 as well as conducting a thorough review of the wider case law applicable in this context.

Read the full judgment here.

Edward Brown KC and Alexander Riddiford acted for the Claimants, instructed by Syedur Rahman, Ellen Sanchenko and Rhys Evans of Rahman Ravelli.