Date: Tue, 18 Oct 2005 09:07:00 +0100

From: Charles Mitchell

Subject: Dishonest assistance in a breach of trust

Dear Jason

I would suggest that one reason why the fault requirement for this type of liability is set so high is that it is a civil analogue to accessorial criminal liability which encompasses notably claimant-friendly causation rules. Various cases now tell us that a claimant need not show that there is any direct causal link between the defendant's actions and the breach of duty in which the defendant has assisted: e.g. Grupo Torras v Al-Sabah (No 5), Casio Computer Ltd v Sayo, and Ultraframe v Fielding. This represents a significant departure from the causation rules which normally govern wrong-based claims, suggesting that some special justification is needed before the court will proceed in this way; indeed in Credit Lyonnais v ECGD the HL declined to hold that liability of this sort could be incurred by those who assist the commission of a tort, whatever their state of mind. There is also the question of remedies, which Stephen Elliott and I attempted to unpick in (2004) 67 MLR 16, and which I won't bore you with this morning!

Best wishes
Charles

At 16:32 17/10/2005 -0400, you wrote:

Dear Colleagues:

I have always wondered why any sort of dishonesty is necessary at all.

The requirements, it seems to me, should be mirror images of the requirements of the tort of intentionally inducing breach of contract.

It seems silly, and confusing, to speak of objective dishonesty.

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