Limitation and release from Liability

(1) A founder or a beneficiary may relieve a foundation council, member or protector of liability for a breach of fiduciary duty, but only with respect to that founder’s or beneficiary’s interest, and except where that founder or (a) is a minor or a person under legal disability; (b) does not have full knowledge of all material facts pertaining to the breach of fiduciary duty; or (c) is improperly induced by any person to act. (2) Subject to sub-section (3) and to the terms of the foundation or its by-laws, a foundation may indemnify against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred, International Foundations [CAP. 24:02 57 in connection with legal, administrative or investigative proceedings, any person who– (a) is or was a party or is threatened to be made a party to any threatened, pending or completed whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a member or protector of the foundation; or (b) is or was, at the request of the foundation, serving as a member, protector or liquidator of, or in any other capacity is or was acting for, another foundation. (3) Sub-section (2) only applies to a person referred to in that sub-section if the person acted honestly and in good faith with a view to the interests of the foundation and, in the case of criminal proceedings, the person had no reasonable cause to believe that his conduct was unlawful. (4) The decision of the foundation council, with the written concurrence of the protector, if any, as to whether the person– (a) acted honestly and in good faith and with a view to the interests of the foundation; or (b) had no reasonable cause to believe that his conduct was unlawful, is, in the absence of fraud, sufficient for the purposes of this section unless a question of law is involved. (5) The termination of any proceedings by any judgment, order, settlement, conviction or the entering of a nolle prosequi does not, of itself, create a presumption that a person– (a) did not act honestly and in good faith with a view to the interests of the foundation; or 58 (b) had reasonable cause to believe that his conduct was unlawful. (6) If any person referred to in sub-section (2) has been successful in defence of any proceedings referred to in that sub- section, the foundation shall indemnify such person in respect of such proceedings as therein mentioned. (7) The Court may relieve a member of liability, in whole or in part, for a breach where it appears to the Court that the member has acted honestly and reasonably and ought fairly to be excused for the breach or for omitting to obtain the directions of the Court in the matter in which the breach arose. (8) The foundation charter of a foundation or its by-laws may provide that the foundation council or any of its members may only exercise certain powers by obtaining prior authorisation of its protector, if any. (9) Where such authorisation for the exercise of a power has been duly obtained from the protector of the foundation, a member of that foundation is not liable for– (a) any loss or depreciation of the property of the foundation; or (b) any damage or prejudice caused to the resulting from the exercise of the power, unless the exercise of that power is a breach within the meaning of section 64(1).