Anstruther v Wilkie, 1856 18 D. 405, CSIH
Citation: Anstruther v Wilkie, 1856 18 D. 405, CSIH
Link to case on WorldLII (reference).
Rule of thumb 1: Is giving a gift to someone a payment? Yes, this is deemed to be a payment.
Rule of thumb 2: Is it improper conduct for an agent or civil servant to accept a gift from another person? Yes, this creates a conflict of interest.
Judgment:
Where agents take gifts from clients who are in a weakened positions then this gifts can be reclaimed – this is deemed to be very similar to the facility and circumvention principle, ‘to talk of it as a gift is absurd... preposterous... I call things by their right name, and therefore I regard this as extortion... the stipulation for this gift... I regard as inconsistent with the confidence and trust which the relation of agent implies, and with the protection and defence of the interests of the client, which the relation of agent imposes on the latter. Advantage of the embarrassed position of the client’s affairs the agent shall not take for his own interest, and in order to obtain gifts... Just as, in various classes of cases (which include medical advisers when their patient is dangerously ill, or in the infirmity of old age, and agents preparing wills for such parties) an agent undertaking the interests of needy and embarrassed clients, in which any actual benefit is stipulated for and obtained by such adviser, acts in violation of the trust and confidence bestowed in him, and the benefit becomes undue and unfair taken of the infirmities or the embarrassments of the party who is entitled to expect protection in return for that confidence and disinterested assistance in his bodily or pecuniary difficulties: the stipulation is, in my opinion, clearly and wholly incompatible with the duty of the agent’, Lord Hope at 415-416
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.