Mr Mothew was a solicitor who had acted for both borrower and lender in a mortgage transaction relating to the purchase of a residential property.

It was alleged that he negligently told the building society that there was no second charge on the house when the mortgage agreement was signed.

At the time of reporting to the building society and requesting its funding, unbeknown to Mr Mothew, the borrower had a relatively small bank overdraft facility limited to £2,000.

After completion of the purchase and mortgage (at which time the lender's funds were applied to the transaction) but before the transactions were registered at Land Registry Mr Mothew was approached by the borrower's bankers (Barclays) to say that they were granting a second mortgage facility to the borrower and seeking that their second charge be registered at Land Registry.

The housing market collapsed, and the homeowners (having lost their employment in the recession) defaulted on their mortgage with the building society.

To realise their money, the building society had the property sold off for £53,000 in February 1991, a considerable time after they had taken possession of it.

This would mean no damages would be recoverable at common law, for there would be no causal connection with Mothew's (alleged) negligence and the building society's loss.

However his professional indemnity insurers took the matter to the Court of Appeal where three judges unanimously supported Mr Mothew (see Judgment below) and the case was referred back, ultimately resulting in a settlement whereby no penalty or payment was required to be paid by Mr Mothew or his insurers.

Bristol and West ended up having to make a contribution in the region of eighty thousand pounds (£80,000) to the costs of Mr Mothew's indemnity insurers.

Millett LJ allowed Mothew's appeal, and held that a causal link needed to be established.

The building society had been fully informed and had consented to Mothew's course of action, which broke the causal link.

Also, a claim for breach of trust was not accepted, because Mothew's misrepresentations did not lead him outside his authority to apply the mortgage money.

It is similarly inappropriate to apply the expression to the obligation of a trustee or other fiduciary to use proper skill and care in the discharge of his duties.

It is the fact that they have all assumed responsibility for the property or affairs of others which renders them liable for the careless performance of what they have undertaken to do, not the description of the trade or position which they hold."

Ipp J. explained, at p. 158: "The director's duty to exercise care and skill has nothing to do with any position of disadvantage or vulnerability on the part of the company.

It should not be confused with equitable compensation for breach of fiduciary duty, which may be awarded in lieu of rescission or specific restitution.

This leaves those duties which are special to fiduciaries and which attract those remedies which are peculiar to the equitable jurisdiction and are primarily restitutionary or restorative rather than compensatory.

A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.