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37 SAcLJ 74 (2025)
Tempering the Harsh Winds: Limiting the Remedy of an Account of Profits

handle is hein.journals/saclj37 and id is 82 raw text is: (2025) 37 SAcLJ 74 (Published on e-First 24 February 2025) TEMPERING THE HARSH WINDS Limiting the Remedy of an Account of Profits An account of profits compels a fiduciary to disgorge unauthorised gains. While justified on the basis that no one should gain from their wrongdoing, the courts have acknowledged the harshness and inflexibility of this remedy. This article argues that the conflicting approaches adopted by the courts can be reconciled into a coherent framework by incorporating the common law two-stage framework of causation. It goes on to consider how this framework for causation can be operationalised in relation to an account of profits, so as to ensure that the remedy is applied in a manner that is both principled and just. LIM Fang-Zhou, Noah1 LLB (First Class Honours) (National University of Singapore); Advocate and Solicitor (Singapore); Trainee Associate, Cliford Chance Pte Ltd. I. Introduction 1 The equitable remedy of an account ofprofits compels a defaulting fiduciary to disgorge unauthorised gains,2 allowing the principal to divest the fiduciary of the benefits he has obtained in breach of his duty3 While it is justified on the basis that no one should be permitted to gain from his own wrongdoing,4 the harshness and inflexibility of this profit-stripping remedy has been acknowledged by the courts, who have recognised that equity has historically been able to skilfully adapt remedies to meet the justice of the case, and that equity could thus operate to [temper] the harsh wind to the shorn lamb' 1 This author is thankful to Mathea Lim and Olive Lim for their capable assistance with an earlier version of this article, and to the anonymous reviewer for their helpful comments. This article is written in the author's personal capacity; all opinions expressed herein, errors and mistakes remain the author's alone. 2 Peter Devonshire, Account of Profits for Breach of Fiduciary Duty (2010) 32 Sydney L Rev 389 at 389. 3 Parker Hood, What Is So Special About Being a Fiduciary (2000) 4 Edinburgh L Rev 308 at 313. 4 Murad vAl-Saraj [2005] EWCA Civ 959 at [108]. 5 Murad vAl-Saraj [2005] EWCA Civ 959 at [81]. © 2025 Contributor(s) and Singapore Academy of Law. No part of this document may be reproduced without permission from the copyright holders.