Foster Bryant Surveying Ltd v Bryant [electronic resource]

[2007] EWCA Civ 200, 13 March 2007. The appellant company appealed against the decision that the respondent director had not been in breach of his fiduciary duties before his resignation had taken effect. The company had been set up by a chartered surveyor who was the majority shareholder. The company had an agreement to carry out all the surveying and project management work for its largest client. The director (majority shareholder) persuaded the respondent director, another chartered surveyor, to join him as a director and shareholder of the company. The respondent director resigned his directorship, but before the resignation took effect the client requested the respondent director to work for it under a retainer arrangement. The client offered to share its work between the respondent director and the other director (majority shareholder). The director (majority shareholder) declined. The company brought a claim against the respondent director. The judge found that the respondent director had been excluded from his role as director after his resignation. The company submitted that the judge had been wrong to find that the respondent director had been excluded. "Held": by agreeing, while still a director, to work for the company after he ceased to be a director, the respondent director was obtaining for himself a business opportunity, possibly even existing business, of the company, or putting himself in a position of conflict with the company. The fact that a fiduciary had not sought to place himself in a position where his interest conflicted with his duty did not exonerate him from the obligation to perform that duty.