Court of Appeal dismisses appeal on fiduciary duty of disclosure and informed consent

G.I. Globinvestment Limited v XY ERS UK Limited [2026] EWCA Civ 1248

The Court of Appeal has unanimously dismissed an appeal arising out of the wide-ranging fraud and conspiracy proceedings in G.I. Globinvestment Limited & ors v XY ERS UK Limited & ors.

The appeal followed the decision of Mr Justice Jacobs after a 7-week Commercial Court trial in late 2024, which dismissed all of the claims, including claims in fraud, conspiracy, breach of fiduciary duty and breach of contractual, tortious and regulatory duties. The proceedings arose from substantial investments made by members of the high-profile Italian di Montezemolo family and one of their family office investment vehicles in an alternative investment fund, which suffered significant losses during the market disruption caused by the Covid-19 pandemic.

The appeal concerned the claim for breach of fiduciary duty against XY ERS UK Limited, the claimants’ investment consultant. The owner of XY, Mr Migani, was also the entrepreneur who had set the fund up and the owner of the fund’s general partner. The Appellants challenged the Judge’s decisions that (i) XY did not owe a free-standing fiduciary duty of disclosure in addition to the usual no-profit and no-conflict duties (ii) XY had disclosed sufficient information for the Appellants to have given informed consent to certain conflicts of interest.

Giving the leading judgment, Newey LJ (with whom Asplin LJ and Popplewell LJ agreed) rejected both elements of the appeal.

First, XY was not subject to a prescriptive and freestanding duty to disclose all information relevant to its principal’s affairs. The Court held that the scope of disclosure was instead relevant only to the question of whether informed consent had been given in order to provide a defence to a claim for breach of the proscriptive no-conflict or no-profit duties. A failure to disclose relevant information does not, of itself, found an independent claim for breach of fiduciary duty.

Second, the Court also upheld the Judge’s conclusion that XY had disclosed sufficient information to obtain the Appellants’ informed consent. In considering whether the disclosure provided by XY was sufficient, the Court applied the Supreme Court’s analysis of the relevant authorities in Hopcraft v Close Brothers Ltd [2026] AC 877. What will amount to material facts for the purposes of informed consent will depend on the circumstances of the case. In particular, the sophistication and intelligence of the principal will be relevant to the question of the sufficiency of disclosure given, as it will affect what the principal understands from information that is provided to it. The Court held that the Judge had been entitled to conclude that the Appellants had all the information they required to understand the nature and extent of the interest of Mr Migani and his companies in the fund.

The judgment provides helpful guidance on the relationship between disclosure and the no-conflict and no-profit rules, and the fact-sensitive assessment required when determining whether a sophisticated party has given informed consent to matters which would otherwise give rise to a claim for breach of fiduciary duty.

To read the full judgment, please click here.

Adam Cloherty KC and James Fennemore acted for the successful respondent, XY ERS UK Limited, instructed by Bird & Bird LLP.