Breach of fiduciary duty - Liability

(1) Subject to sub-section (7), an intentional and wilful fraudulent act or omission by, at the behest of, under the direction of, or with the participation or concurrence of, the foundation council, a member of the foundation council or a protector, that results in actual prejudice to a foundation, founder or beneficiary shall be a breach of fiduciary duty. fiduciary duty- (2) An action for breach of fiduciary duty may be brought before the Court by a founder, the foundation council or any of its members, a protector or a beneficiary of a foundation. 52 (3) Where a foundation council is found liable for a breach of fiduciary duty, all of its members shall be jointly and severally liable. Where individual members or protectors are found liable, together with others, for a breach of fiduciary duty, they shall be jointly and severally liable. (4) The foundation council, any of its members, or any protector who commits or is party or privy to a breach of fiduciary duty shall be liable for– (a) the failure, depreciation or loss of any investments or any other property held by the foundation and resulting from such breach; and (b) to the extent reasonably ascertainable, any profit or benefit which would have accrued to the foundation endowment had there been no (5) A foundation council shall segregate the foundation endowment and shall not set off a profit accruing to one asset of the endowment against a loss or depreciation in value of another asset of the endowment resulting from a breach of fiduciary duty. (6) Where the foundation council, any of its members or a protector commits a breach of fiduciary duty at the instigation, request, direction, or with the participation or concurrence of a beneficiary, the Court may impound all or part of the beneficiary’s interest by way of indemnity to a council member, foundation, a protector, a founder or any other beneficiary, or any person claiming through any of them. (7) A member of a foundation council is not liable for a breach committed by another person prior to his appointment or for a breach committed by another member unlessInternational Foundations [CAP. 24:02 53 (a) he becomes or ought to have become aware of such breach; and (b) he actively concurs in or conceals such breach, or fails within a reasonable time to take proper steps to protect or restore the property endowment or to prevent the continuance of the breach. (8) A member who becomes aware of a breach shall take all reasonable steps to remedy the breach or cause the breach to be remedied. (9) A founder and the foundation council may agree to a standard of liability, as set forth in a foundation charter, that differs from the standard of liability described in sub-section (1), provided that such standard is not more stringent than the standard described in sub-section (1).