Part V Financial Wrongdoing and Private International Law, 16 Dishonest Assistance
Zachary Douglas QC, Andrew Bodnar
Edited By: William Blair, Richard Brent, Tom Grant
- Criminal proceedings — Insider dealing — Misuse of information — Money laundering — Investment business — Market abuse
This chapter deals with issues relating to dishonest assistance. To succeed with an equitable claim for dishonest assistance, the claimant must establish, firstly, the existence of a trust or fiduciary relationship, secondly, which has been breached, thirdly, with the assistance of the defendant, and fourthly, in circumstances where the defendant has been dishonest. The claim for dishonest assistance is not a restitutionary claim; it is a form of accessory liability based on fault, and hence the defendant’s state of mind assumes a critical role in the cause of action. If the defendant is liable for dishonest assistance, then he is personally liable to account to the claimant and hence the remedy is personal and not proprietary. Although described as an equitable claim, and notwithstanding that the quantum of damages is usually calculated by reference to the value of the breach of trust, the remedy for dishonest assistance is damages. The chapter then looks at a real scenario of a case of dishonest assistance. It also examines the relevant jurisdiction and applicable law, including the characterization of the issue of liability for dishonest assistance.