and that

Counsel does not seem to have made an argument by analogy to dishonest assistance in a breach of trust.

However, Lord Woolf MR (with whom the other four agreed) observed that

For the purposes of the appeal, there were placed before their Lordships a selection of extracts from the leading text books dealing with the issues on the appeal. However the extracts provide no support for Mr. Sumption's contention. Any assistance for his argument is to be found in a carefully reasoned article by Mr. Philip Sales in the Cambridge Law Journal (1990) pp. 491-514. However, reading that article as a whole, I do not find that it establishes the Bank's case. Mr. Sales was primarily concerned in that article with a distinction between conspiracies to injure another by lawful and unlawful means. In that context he considers the circumstances where a secondary liability in tort can arise. However the problem with arguments based on conspiracy or secondary liability is that in both cases liability would depend upon the deception of the Bank and deceiving the Bank would be outside the scope of Mr. Pillai's employment.

The Sales piece was the obvious one. But it would be interesting to know what the other academic texts which were placed before the HL actually were. Since this is the only reference to them, and since no other speeches were delivered, in theory we shall never know. The argument by analogy with knowing assistance might have been made in one of those text. But does this not suggest that there ought to be a section with the cases cited in judgment, and in argument, on academic work cited in the judgment or in argument, as in the DLRs. How could such an innovation be pressed upon the law report publishers?

If it were operating here, it would have been interesting to see if Hoffmann's piece in Birks (ed) Frontiers of Liability or Tugendhat's piece in Rose (ed) Restitution and Banking Law were cited (though it would have been odd had the former been cited and not referred to by Lord Woolf, though, then again, it might not), and it would have been interesting to see why Lord Woolf did not accept, in particular, the arguments made by Tugendhat, which, from memory, seemed well suited to the Bank's claim here. Perhaps others more well read in tort, more adept with these arguments, and more in touch with the details of Hoffmann and Tugendhat could demonstrate why those views would go the way of Sales'.

In any event, it is academic (in both the best and the worst senses) so to speculate in the absence of hard evidence as to what was available before the House. Can anyone plug that gap ?

Eoin.

EOIN O'DELL
Barrister, Lecturer in Law

Trinity College
Dublin 2
Ireland

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