Equity and Trust: Advising on a Breach of Contract and Privacy Case and Viability of Plans for Customer Safety and Shareholder Payment

This article discusses a case of breach of contract and privacy in Equity and Trust and advises on the viability of plans for customer safety and shareholder payment. The article also refers to relevant case laws such as American Cyanamid vs Ethicon limited, Mosley vs News group newspaper, Douglas vs Hello company, and Heeling sports limited and another vs youngsters and other to support the advice.

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EQUITY AND TRUST
By (Student’s Name)
Professor’s Name
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Equity and trust
Facts
Eva and Herman are couples, who are also film stars. They have sold their exclusive
photography rights of their wedding to goodbye magazine. An unauthorized photographer from
Oh wow magazine gains access to the venue and takes pictures before sending them to the head
office in London. The photos are then published.
Issues
The first issue to consider the two film stars Eva and Herman promoting clean and
monogamous living. Secondly, whether Oh wow magazine has the right to publish and sell
photos from the wedding. Finally, whether the oh wow magazine had the right to commercially
publish the photos for public viewership and public domain.
Advise
Merits of the case
According to Senior courts ACT 1981, which states that the high court is at free to order
an injunction or choose a person who receives in all cases for the court to appears to be just and
convenient to do so1. Due to this ACT of the equity and trust the couples can appeal for
interlocutory injunction restraining publication order in the court. However, there are facts that
the two need to consider before they make appeal to induct or not. The jurisdiction of such
decisions remains with court after considerations that the court seem conversant with2. This
1 Chang, K., Li, Y. and Yi, H.C., 2018. Does Geographic Proximity Change the Passiveness
of Equity Ownership by Bank Trust?. International Review of Finance,p.133.
2 Chen, S.Y., Wu, W.C., Chang, C.S., Lin, C.T., Kung, J.Y., Weng, H.C., Lin, Y.T. and Lee, S.I.,
2015. Organizational justice, trust, and identification and their effects on organizational
commitment in hospital nursing staff. BMC health services research, 15(1), p.363.

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therefore means that there is no law regarding these rules, but the judges and the jury look at
what might be for the decision before they eventually make it. Based on this section, therefore it
is important to focus on past case scenarios and determine the way ahead of the two couples if
they have a chance
Sue for breach of commercial contract
About the case of American Cyanamid vs Ethicon limited, the Lord Diplock in his
judgement seek to determine if the two companies had a commercial deal3. The interlocutory
appeal concerns on the patent deal was based on the case that they are disintegrated in a
commercial contract signed by both parties. In his judgement, he recognized that there existed a
deal between the two companies and this provided for absolute sutures for the court to go ahead
and award an interlocutory injunction for the American Cyanamid company4.
With the fact that, there exist a commercial deal between the couples, Eva and Herman,
and the goodbye magazine, it therefore means that the two parties were entitled to commercial
confidence. Any picture taken or published during the wedding or an hour before or even after
has a commercial value tagged to it. With commercial value attached to it there is need for
confidentiality. The two couples are entitled to protect the photos; they are within their legal
rights to sue the Oh wow magazine for publishing the photos without their consent. Following
3 Clements, R. and Abass, A., 2018. Complete Equity and Trusts: Text, Cases, and Materials.
Oxford University Press. Pg. (233)
4 Coffee Jr, J.C., Sale, H. and Henderson, M.T., 2015. Securities regulation: Cases and materials.
Pg. (112)

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the judgement given by Lord Diplock during the American Cyanamid vs Ethicon limited, it is
very considerable for the couples to seek an interim injunction from the court.
With reference to the case of Mosley vs News group newspaper, the court of appeal during
their judgement didn’t find valid to consider breach of contract. Upon such judgement the
infringement that came along in the existing conduct of inconsistency with the pre-existing
relationship. The judge considered evidence of reasonable expectations of privacy and stood by
it. The couples Eva and Herman have the evidence of breach of contract5. They have the picture
that was taken by Julian since, it was published by the Oh wow magazine and is in the public
domain. They also have proof that Julian was not a cake decorator as recorded before but rather
a journalist with an intention. Considering the two evidences and referring to the American
Cyanamid case, it is quite evident that there is enough evidence that will put the Oh wow
magazine out of the claim of patency. Just like Max Mosley was granted an interlocutory
injunction, restraining Ethicon from infringing such patency so will the Oh Wow magazine be
ordered until further trial order is arraigned for.
Breech of privacy and confidentiality.
According to the case by Douglas vs Hello company of 2001, there was introduction of the
privacy and confidentiality issue. The Hello company published photos of Douglas without his
5 Cremers, K., Gaessler, F., Harhoff, D., Helmers, C. and Lefouili, Y., 2016. Invalid but
infringed? An analysis of the bifurcated patent litigation system. Journal of Economic Behavior
& Organization, 131, pp.218-242

EQUITY AND TRUST 2
consent having been a celeb. Douglas, therefore in his submission to court claimed that the
company has breached privacy and confidentiality by publishing his photos while his wedding
photo contract was awarded to Ok magazine. The court determined three tests for confidentiality
and ruled in favor of Douglas before awarding Ok magazine £1,033,156. The test for
confidentiality and privacy include:
Obligation for confidence, right to private occasions and there should be clear
communication about not taking pictures during the wedding event6. The English court after
considering these three tests for confidentiality ruled in favor of Douglas.
The three requirements of achieving confidentiality in Eva and Herman case have all been
approved making the act by the Oh wow magazine a breach of confidence. There is an obligation
of confidence. The obligation for confidence is that the two are famous film stars and there is
need to protect and preserve their public image. By publishing this picture, the obligation for
confidentiality has been flouted7.
Confidentiality according to the law must arise, only on private occasions. The occasion
although has a mass following it is privatized. It is privatized by the sense that it takes place in a
specific hotel, where only few guests can attend. Only a few people like journalist can access the
6 Frydman, C., Hilt, E. and Zhou, L.Y., 2015. Economic effects of runs on early “shadow banks”:
Trust companies and the impact of the panic of 1907. Journal of Political Economy, 123(4),
pp.902-940.
7 Handayani, D., 2017. Legal Principles of Evidence on Civil Cases in Public Judiciary. Hang
Tuah Law Journal, 1(1), pp.111-127.

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hotel venue. It is for this reason that Julian sneaks in as a cake decorator. This acts as proof that
the occasion was privatized.
The people involved in the occasion must make it clear that no photographic pictures are to
be taken. The communication is clear about not taking pictures. It is for this reason that Julian,
the journalist enters with a secret camera. Had it not been so, she would have not sneaked in a
spy-camera8.
Having looked at the three prospective of breaching confidentiality, the Oh wow magazine
and their journalist Julian have breached the rule of confidentiality and the couples are likely to
be granted an interim injunction for the publication of the pictures taken during the wedding
reception.
Validity to patency
The Heeling sports limited and another vs youngsters and other claim to patency. This is
because the Heeling sports who were the original owner of the contract were denied their right
of patent immediately as originally applied. Through this appeal, led by judge Pumfrey, the
house of lords on a 3-2 judgement ruled in favor of Heeling sports and awarded it patent. They
agreed to patent as they were trying to prevent abuse on the youngsters. Eva and Herman can
also apply this application based on this fact. The Oh wow magazine has a committed the offence
of breach of contract and privacy by publishing photos originally meant for goodbye magazine.
The damages of the same, economically must be suffered by the Oh wow magazine. These
circumstances of confidence act in favor of both the couples and the good-bye magazine which
might be paid well in determination of what consequences the pictures might have caused.
8
Herinckx, Y., 2014. Liability for Inappropriate Interim Measures in Commercial Arbitration. Pp
103-107

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Demerits of the case
During the case of Cambridge vs British Broadcasting Corporation, the court dissenting
opinion of the Lords was based on the part of the duties of the BBC. They established that a
media corporation is supposed to report to the public the news, however bad or good9. The
reception at Eva and Herman should be publicized. The two are celebrities who have many
followers and are also ambassadors of healthy living and monogamous living which the
circulating picture is totally against.10
Question 2
Will is right to be concerned about the company, but his plans are likely to work in the
following ways considering the cases referred to.
Plan 1: Money returned to customers and starting a new account called pre-shipment
customer safety accounts.
With reference to the case of Barclays Bank limited vs quit close investment, the R limited
company sought a loan from a financier11. The financier being Quit close investment. The
company took the loan which was only meant for the customers in case the liquidation happened,
and dividends paid. The company having gone into involuntary liquidation the customers had to
get paid. The appellant who are the quit close company claimed the money already in the special
9 Huebner, M.S. and Klein, D.S., 2015. The Fiduciary Duties of Directors of Troubled
Companies. American Bankruptcy Institute Journal, 34(2), p.18.
.
10 Kalleberg, A.L., 2015. Financialization, private equity, and employment relations in the United
States. Work and Occupations, 42(2), pp.216-224.
11 Kennedy, R., 2018. Walker v City of Birmingham Revisited. The Supreme Court Review,
2017(1), pp.313-336

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account12. Notice that this is the same dilemma facing Will and his company. The judge Lord
Wilberforce, in his ruling held the decision of trust by awarding the trust to the customers of the
Rolls Razor company. He established that the essence of bargain by the two company was held
in the trust that both created a mutual obligation through creating a new account. The R company
therefore become a trustee even before gaining its bankruptcy status. The lender of the loan
therefore received the mutual benefit13.
Evaluating such a plan and the judge’s ruling, it therefore makes Wills plan for his
company and his customers Viable. The money must be held in trust for those who paid it, in this
case the customers. For the trust condition to be met the following should be achieved; the
certainty of intention. How certain is will with going on with his plans. If he is certain then trust
is gained. Beneficiaries and the subject matter is also an element of gaining trust. During trust it
must be stated clearly in writing that the beneficiaries of the account created are customers and
not any other group of stakeholders. The subject matter is the reason why the trust must be done.
For Will’s case, it is because, the company is in debts. If all this condition of trust is met, then
Will’s first plan might be viable.
It is important for the new account to be named as customer true deposit account. The
judge in his ruling on Re- Kayford case investment determined that the virtue of naming a new
account to customer fixed account is a declaration to the effect of the trustees who should be
12 Lath, A., 2014. Analysing the Pitfalls of Indian Patent Injunctions based on Fear of
Infringement. P. 13
13 Markham, J.W., Gabilondo, J. and Hazen, T.L., 2017. Corporate Finance: Debt, Equity, and
Derivative Markets and their Intermediaries, 4th. West Academic Publishing. Pp 104-109

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paid after bankruptcy14. The customers in Wills case are therefore responsible for the cash,
deposited in the fixed and named account. Like the judge committed, this is a perfect debt case
transformed to trust15.
Plan 2: Providing substantial amount of money to shareholders of his company from
his wealth.
To determine viability of this plan it is important to consider the Twinsectra limited vs Mr.
Yardley. In this case Mr. Yardley was sued for using money meant for investment to pay off
some debts. The debt was worth 357,720 euros. The suing part argued that the Mr. Yardley had
broken trust by since they argued the money was bound by trust. In the judgement, Lord
Hoffman considered a purely subjective test. He held that for a person to be held responsible for
breach of trust they must be aware by their own dishonest standards about the mistrust. The same
must apply to other honest individual to the same case. Based on this reasoning the Judge held
that Yardley was innocent.
By this judgement it is logical to conclude that the action by Will is viable. Taking Will as
the creditor be awarding money from his general asset to the debtor, the Doors limited, he
becomes an insolvent. His money is therefore refundable with or without achieving the purpose
for which it was awarded. If it doesn’t achieve, in this case doesn’t pay the shareholders then
trust is not achieved. When trust is not achieved, the resulting trust is in the favor of the creditor
who originally gave the amount16. In this case the subject is Will, who gives the Door limited
14 Morley, M.T., 2017. Nationwide Injunctions, Rule 23 (b)(2), and the Remedial Powers of the
Lower Courts. BUL Rev., 97, p.615.
15 Pattenden, R. and Sheehan, D., 2016. The law of professional-client confidentiality. Oxford
University Press.pg 331
16

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400000. The door limited therefore holds the amount as a trustee. With this explanation, Will’s
second plan is viable.
In the same case of Juliet Bellis and co vs Challinor and others Lord Millet had a different
judgement opinion. In his judgement Lord Millet had the opinion of trust mirrored in three
different approaches. The lender, the borrower, the purpose and no one, in the sense that the
beneficiary remains in suspense. The beneficial interest is reviewed if the purpose of the trust is
not achieved17. In the English law therefore, the interest or the remaining amount doesn’t go
back to the lender. However, Millet characterized that the interest must go back to the lender,
until the purpose for which it is meant is fulfilled on the resulting trust. With the reasoning of
Lord Millet, the plan of Will is extremely Viable. However, the implication of trust, requires that
if the money fails and doesn’t become the pay of dividends, it becomes a property of Door s
Limited18. This is according to specific trust; this way the money cannot be deposited to Will’s
personal account but to the company’s account. At this point the plan no longer becomes Viable
for Will19.
Implications of his lunch with Steve
The implications of this case will be drawn from the case of Paul vs Constance 1977. Ms.
Paul and Mr. Constance shared an account that was only labeled to the name of Mr. Constance.
17 Schaefer, J.K., 2015. Court Assistance in Arbitration-Some Observations on the Critical
Stand-by Function of the Courts. Pepp. L. Rev., 43, p.521.
18 Schneider, S.R., 2015. Is Debt vs. Equity Different in a Partnership?.pp 122
19 Stout, Lynn A., and Margaret M. Blair Gower, 2017. "A team production theory of
corporate law." In Corporate Governance, pp. 169-250.

EQUITY AND TRUST 2
Later with the death of Mr. Constance, Mrs. Constance claimed the account was hers and needed
her share of the amount. They both, Ms. and Mrs. Paul appeared each claiming to own the
account.
The judge in his ruling awarded Ms. Paul the right full account owner. His decision was
based on the following considerations. Using declaratives in more than one occasion clearly
convey a declared message that the fund is his, the deceased as much as it is for the one he is
speaking to. The exact words used were, “this money is as much yours as it is mine”. It is the
exact same statement that Will use during his meeting with Steve. Will might have acted
unaware of the subtleties of equity.
However, he acted in terms of the domestic relationship and situation that he shared with
Steve. Bearing in mind that Will claims that Steve is a mentor to him and the judgement ruling in
Adams vs Kensington Vestry is even more proof20. The belief that Steve will do right to the
disposal of the same, the words that he used present a clear declaration that the assets and funds
that are owned by him, they can share equally. “my wealth is your wealth too.” Such a
declaration is a justification of trust between the two parties and that Steve can inherit all the
wealth that Will has21.
However, the last part of the judgement to the Bieber vs Teather Limited case gives Will a
simple advantage but, in the end, it might not work, the high court considered that the binding
settlement was reached and the teathers paid the same settlement sum of money22. The judge
declares that for one to become a trustee of an account must do something that is equivalent to
20 Panesar Sukhninder Edwards & Stockwell 2015. Equity and Trust law. P. 221
21 Telecan, S.F., 2016. Civil Tort Law or the Paradigm Shift towards the Study of Civil Illicit.
SUBB Jurisprudentia, p.5.
22 Anderson, C.L., 2017. Taking Flint. Hous. J. Health L. & Pol'y, 17, p.107

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that account and at that point is when an agreement is binded. There must be deposits and
withdrawals which Steve hasn’t done in any of the accounts but since Will has given Steve all the
account cards and information Steve is at will to do the same.
References
Anderson, C.L., 2017. Taking Flint. Hous. J. Health L. & Pol'y, 17, p.107.

EQUITY AND TRUST 2
Chang, K., Li, Y. and Yi, H.C., 2018. Does Geographic Proximity Change the Passiveness of
Equity Ownership by Bank Trust?. International Review of Finance,p.133.
Chen, S.Y., Wu, W.C., Chang, C.S., Lin, C.T., Kung, J.Y., Weng, H.C., Lin, Y.T. and Lee, S.I.,
2015. Organizational justice, trust, and identification and their effects on organizational
commitment in hospital nursing staff. BMC health services research, 15(1), p.363.
Clements, R. and Abass, A., 2018. Complete Equity and Trusts: Text, Cases, and Materials.
Oxford University Press. Pg. (233)
Coffee Jr, J.C., Sale, H. and Henderson, M.T., 2015. Securities regulation: Cases and materials.
Pg. (112)
Cremers, K., Gaessler, F., Harhoff, D., Helmers, C. and Lefouili, Y., 2016. Invalid but infringed?
An analysis of the bifurcated patent litigation system. Journal of Economic Behavior &
Organization, 131, pp.218-242.
Frydman, C., Hilt, E. and Zhou, L.Y., 2015. Economic effects of runs on early “shadow banks”:
Trust companies and the impact of the panic of 1907. Journal of Political Economy,
123(4), pp.902-940.
Handayani, D., 2017. Legal Principles of Evidence on Civil Cases in Public Judiciary. Hang
Tuah Law Journal, 1(1), pp.111-127.

EQUITY AND TRUST 2
Herinckx, Y., 2014. Liability for Inappropriate Interim Measures in Commercial Arbitration. Pp
103-107
Huebner, M.S. and Klein, D.S., 2015. The Fiduciary Duties of Directors of Troubled Companies.
American Bankruptcy Institute Journal, 34(2), p.18.
Kalleberg, A.L., 2015. Financialization, private equity, and employment relations in the United
States. Work and Occupations, 42(2), pp.216-224.
Kennedy, R., 2018. Walker v City of Birmingham Revisited. The Supreme Court Review,
2017(1), pp.313-336.
Lath, A., 2014. Analysing the Pitfalls of Indian Patent Injunctions based on Fear of Infringement.
P. 13
Markham, J.W., Gabilondo, J. and Hazen, T.L., 2017. Corporate Finance: Debt, Equity, and
Derivative Markets and their Intermediaries, 4th. West Academic Publishing. Pp 104-
109
Morley, M.T., 2017. Nationwide Injunctions, Rule 23 (b)(2), and the Remedial Powers of the
Lower Courts. BUL Rev., 97, p.615.
Panesar Sukhninder Edwards & Stockwell 2015. Equity and Trust law. P. 221

EQUITY AND TRUST 2
Pattenden, R. and Sheehan, D., 2016. The law of professional-client confidentiality. Oxford
University Press.pg 331.
Schaefer, J.K., 2015. Court Assistance in Arbitration-Some Observations on the Critical Stand-
by Function of the Courts. Pepp. L. Rev., 43, p.521.
Schneider, S.R., 2015. Is Debt vs. Equity Different in a Partnership?.pp 122
Stout, Lynn A., and Margaret M. Blair Gower, 2017. "A team production theory of corporate
law." In Corporate Governance, pp. 169-250.
Telecan, S.F., 2016. Civil Tort Law or the Paradigm Shift towards the Study of Civil Illicit.
SUBB Jurisprudentia, p.5.