Relief for Bribes in Equity

Abstract

As Lord Templeman remarked in Attorney-General (Hong Kong) v Reid, ‘bribery is an evil practice which threatens the foundations of any civilised society’. That there is a strict policy against bribes is best reflected in the liability of the fiduciary-bribee as the bribe recipient to hold that bribe on constructive trust for the principal. This article considers other forms of equitable relief that may be available for bribes, in particular relief against a briber or third parties implicated in a breach of fiduciary duty involving a bribe. These include the equitable remedies of rescission and disgorgement of profits against such a briber or third parties. This article makes two arguments. First, an accessory liability framework should be used to analyse rescission for bribes involving multiple parties. Second, despite the absence of a positive duty of fiduciary loyalty owed by an accessory to a principal, the same causal tools that equity uses to identify a fiduciary’s gains should also apply to disgorgement of the gains made by an accessory through his or her participation in a fiduciary’s breach. Both arguments, it is suggested, are consistent with a strong policy against bribes.