Tristan Salter of Five Paper’s Private Client team, has provided the following summary on how two decisions arising from losses at the onset of the Pandemic illuminate the relationship between fiduciary loyalty and disclosure—and explain why silence is not always the same wrong.
1. In fair equity, where we lay our scene, two decisions give disclosure different parts to play. Yet GI Globinvestment Ltd v XY ERS UK Ltd [2026] EWCA Civ 1248 and Saxon Woods Investments Ltd v Costa [2026] UKSC 21 are not feuding houses. Both locate disclosure within the substantive duty of loyalty, rather than treating it as an independent obligation.
Act I: Much ado about disclosure
2. In GI Globinvestment, investors challenged incomplete disclosure of financial interests in a recommended fund. The court rejected a freestanding fiduciary disclosure duty but held instead disclosure enabled informed consent to what would otherwise breach the no-conflict or no-profit rules by a fiduciary.
3. In this instance there had been omissions of disclosure by the Defendant, but the court held that the investors already understood the material conflict; the omissions did not materially alter its nature or scale.
Act II: The board’s the thing
4. In Saxon Woods, a director covertly frustrated the agreed sale strategy, sincerely believing delay would benefit the company. But a boardroom, unlike a ballroom, is no place for a mask. Section 172 of the Companies Act 2006, building on common law duties of fiduciaries, required good faith in conduct, not merely in thinking.
5. In Saxon Woods the director as fiduciary to the company should have presented his alternative to the board, rather than secretly displaced its decision. The breach lay in disloyal subversion of corporate authority.
Act III: A duty by any other name?
6. Both decisions accept that there is no separate, general fiduciary duty of disclosure, while recognising that the underlying duty of loyalty may require disclosure in particular circumstances. Thus, the absence of a freestanding duty does not prevent non-disclosure from forming part of an actionable breach.
Epilogue: All’s well that is authorised
7. Two cases, both testing the limits of the duties of disclosure and loyalty for fiduciaries in different ways: in one knowing permission answered the conflict claim, in the other supposed future gratitude could not excuse covert subversion.
8. What is important is that incomplete disclosure need not end in tragedy. However, in fiduciary law, silence is not necessarily rest.