Lloyd's Maritime and Commercial Law Quarterly
Bribery and secret commissions: a common law-equity divide?
Jordan English*
This article examines the remedies for bribery and secret commissions at common law and equity. It takes as its central premise that differences between the two cannot be justified by reference to history alone and should arise only where the rules are responding to different concerns. In the context of the civil remedies for bribery, both common law and equity are responding to the same concern: to ensure that agents act free from any conflict of interest in performing their duties to the principal. The article therefore argues that the differences between common law and equity in this area are unjustified and should be eliminated.
I. INTRODUCTION
A fundamental, albeit controversial,1 proposition of English private law is that differences between rules at common law and in equity cannot be justified by reference to the jurisdictional origin of those rules alone.2 If distinctions are to persist today, it should be only because the rules themselves are addressing different concerns: “there is no reason why common law and equity should continue to give competing answers to the same question.”3
In many respects, the law has moved in that direction. English law no longer recognises a broad doctrine of common mistake in equity that can render a contract voidable,4 as
* Associate Professor of Law, University of Oxford and Tutor and Fellow in Law, Magdalen College, Oxford. I am grateful to Jonas Atmaz Al-Sibaie, Steven Elliott, Matthew Frey, Julius Grower, Mohammud Jaamae Hafeez-Baig, Samuel Hickey, Frederick Wilmot-Smith and the anonymous reviewer for their comments on an earlier draft.
The following abbreviations are used:
Civil Fraud: T Grant and D Mumford (eds), Civil Fraud, 1st edn (London, 2018);
Commercial Fraud in Civil Practice: P McGrath, Commercial Fraud in Civil Practice, 2nd edn (Oxford, 2014);
Davies, “Bribery”: PS Davies, “Bribery”, in PS Davies and J Penner (eds), Equity, Trusts and Commerce (Oxford, 2017) 225;
Elliott, “Basic Structure”: S Elliott, “The Basic Structure of Rescission”, in Equity Today;
Equity Today: B McFarlane and S Elliott (eds), Equity Today: 150 Years after the Judicature Reforms (Oxford, 2023);
Leslie & Taylor: N Leslie and A Taylor, “Civil Claims”, in R Lissack and F Horlick (eds), Lissack and Horlick on Bribery and Corruption, 3rd edn (2020) 664.
1. A Burrows, “We do this at Common Law but that in Equity” (2002) 22 OJLS 1, 3–5.
2. FW Maitland, Equity: a Course of Lectures, 2nd edn (Cambridge, 1936), 20; Burrows (2002) 22 OJLS 1; B McFarlane, “The Persistence of Equity: Lessons from the Trust”, in Equity Today 3, 9.
3. McFarlane, ibid, 9.
4. Solle v Butcher [1950] 1 KB 671; but see now Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (The Great Peace) [2002] EWCA Civ 1407; [2002] 2 Lloyd’s Rep 653; [2003] QB 679, [157–160].
BRIBERY AND SECRET COMMISSIONS
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