A vigilant trust is one which " does not allow the trusted party the opportunity to participate in the original decision -making process. A deferential trust does operate so as to allow input from the trusted party at the decision-making stage" . "Vigilant trust", is a simple way of describing "undue influence"; a deferential trust is the most common trust, the one based on the use of an intermediary. .
"Ei qui affirmat, non ei qui negat incuibit probatio".
At the moment only a small strict list of generally accepted fiduciary relationships exists. Examples from that list are the solicitor/client, the principal/agent, the trustee/beneficiary relationships, and others. "There have been attempts to devise a uniform test, notably by Canadian academics" . Nonetheless, none has officially been accepted by the British courts. As it seems, British judges, to decide if there is a fiduciary relationship in the case they are dealing with, tend to compare it with the above noted, well established fiduciary relationships. Examples of this include the cases of Boardman v Phipps , English v Delham Vale Properties Ltd , and others. .
Undue influence/ vigilant trust tests.
Three different tests are noted below. None overrules but actually, each completes the other. .
- For undue influence a special relationship between the related parties is needed. In Flannigan's own words, "The law presumes undue influence if a special relationship exists" .
- Nourse LJ in Goldsworthy v Brickell , having Parker LJ following, notes that "influence" over the trusting party is the criterion proving the fiduciary relationship in undue influence.
- By International Corona Resources LTD v Lac Minerals LTD , it is apparent that a fiduciary obligation (or else, a vigilant trust obligation) arises where access (to information, possession etc) is given for a specific purpose. .
Concluding, for undue influence to exist, a special relationship, having the one party having influence upon the other, giving to it access to important data, is needed.
