The new formulation of a positive duty in the UK under the common law to disclose own misconduct as was laid down in Item Software v Fassihi ([2003] 2 BCLC 1 (High Court)) has not been considered favourably in other common law jurisdictions. This article provides a case commentary on the judicial decision, considers whether the creation of the positive duty was necessary within the facts of Item Software, provides an overview of its reception by other Commonwealth jurisdictions, and analyses this case in the context of the available remedies. The article concludes by suggesting that the creation of the duty to disclose should also be considered from the perspective of what would be the remedies that the company ought to get by the directors’ failure of a duty to disclose.