"Among them are the factor of position or office held, the nature of the corporate opportunity, its ripeness, its specificness [sic] and the director's or managerial officer's relation to it, the amount of knowledge possessed, the circumstances in which it was obtained and whether it was special or, indeed even private, the factor of time in the continuation of fiduciary duty where the alleged breach occurs after termination of the relationship with the company, and the circumstances under which the relationship was terminated, that is whether by retirement or resignation or discharge.

[1] First, in Island Export Finance v Umunna,[2] Hutchinson J, who relied extensively on Laskin J's judgment, took the view that the proposition that liability arises from the mere fact that the defendant's position as a director led him to a post-resignation opportunity, was too widely stated.

In Balston Ltd v Headlines Filters Ltd[3] Falconer J followed the views expressed by Hutchinson J, stating, "In my judgment an intention by a director of a company to set up business in competition with the company after his directorship has ceased is not to be regarded as a conflicting interest within the context of the principle, having regard to the rules of public policy as to restraint of trade, nor is the taking of any preliminary steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he remains a director.

Furthermore, drawing on Lawrence Collins J's reasoning in CMS Dolphin Ltd v Simonet, where the claimant company successfully claimed that Simonet, its former managing director, was in breach of fiduciary duty by diverting a maturing business opportunity to a new company established by him following his resignation, Rix LJ stressed that there should be "some relevant connection or link between the resignation and the obtaining of the business".

Thus, in cases where liability for post-resignation breach of duty had been found, there was a causal connection between the resignation and the subsequent diversion of the opportunity to the director's new enterprise.

That said, Rix LJ recognised the difficulty of accurately summarising the circumstances in which retiring directors may or may not be held to have breached their fiduciary duties given that the issue is "fact sensitive".

Moses LJ, while recognising that the resolution of issues of breach of fiduciary duty are fact specific, felt "almost" nostalgic for the days when there were inflexible rules of equity which were inexorably enforced by judges "who would have shuddered at the reiteration of the noun-adjective".