ADD AT END OF PARAGRAPH: A director was recently held liable for non-disclosure of his own misconduct, although the Court of Appeal rejected the notion that there was a separate and independent fiduciary duty to disclose such misconduct: Fassihi v Item Software (UK) Ltd [2004] EWCA Civ 1244 at [41]. It remains unclear whether the director’s obligation in this case was a fiduciary obligation: it was justified on the basis of the fiduciary position held, and the duty of loyalty owed, by directors (at [34], [41]) although the duty appears capable of being owed also by employees (at [55], [60]), raising the question whether it is a duty “peculiar to fiduciaries” (see Bristol & West Building Society v Mothew [1998] Ch. 1 at 16); see also Shepherds Investments Ltd v Walters [2006] EWHC 836 (Ch) at [132].  The justification given in Shepherds Investments v Walters is more orthodox: a director is in breach of fiduciary duty if he acts with a conflict between duty and interest (including where he is personally competing with the company) without disclosing that to the company and seeking consent.  However, Etherton J also considered it a breach of fiduciary duty for the director to fail to disclose any information which is of relevance and concern to the company, which does not appear to require any conflict between duty and interest and which is a positive duty.  Australian courts have rejected the decision in Fassihi as inconsistent with the proscriptive nature of fiduciary duties: P & V Industries Pty Ltd v Porto [2006] VSC 131 at [32]-[34], [43].  The duty of disclosure can be understood instead as a part of the director's general (company law) duty to act in good faith in the best interests of the company.  In Helmet Integrated Systems Ltd v Tunnard [2006] EWCA Civ 1735 an employee was held not to have acted in breach of fiduciary duties when he took preparatory steps toward developing a competing business, despite the fact that those preparatory steps had not been disclosed to his employer.  Some of the confusion contained in (and created by) these cases ought to abate as the provisions of the Companies Act 2006 come into force creating a code of directors' duties.  However, that will not avoid the issue completely as there will remain cases where the person concerned is not a director but is nonetheless held to owe fiduciary duties (e.g., some non-directorial employees).