Date: Tue, 18 Oct 2005 09:54:46 +0100

From: Robert Stevens

Subject: Dishonest assistance in a breach of trust

If dishonest assistance is accessory liability, why is it that the rules on accessory liability for the infringement of a primary right committed by someone else are so different at common law and in equity? If we see procuring breach of contract as a form of accessory liability too, there are three striking differences, as Charles says. (1) the actus reus, i.e. what counts as assistance or procuring, are quite different; (2) the mens rea, dishonesty and intention to procure, are different; and (3) the remedies are different.

Off the top of my head there are several options:

(1) the common law and equity have developed separate rules for accessory liability and they are just inconsistent with one another and we should accept this (analytically not very attractive);

(2) one or other of procuring breach of contract or dishonest assistance is not really accessory liability at all. Dishonest assistance could be seen as part of a wider developing wrong of 'fraud' for example. (Not very appealing to me);

(3) Just as we have one set of rules for accessory liability in the criminal law, we should in the law of wrongs. So if I procure a trespass to your land or person I do not commit the primary wrong but am liable as an accessory and that the same rules should apply to accessory liability for equitable wrongs.

All of the above is VERY tentative.

Robert Stevens
Barrister
Fellow and Tutor in Law,
Lad Margaret Hall
University of Oxford

Charles Mitchell writes:

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!

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