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Great minds are often misunderstood. Twinsectra is a rather regrettable example.

Despite the clarity and strength of his judgment in Twinsectra, Lord Millett was surely misunderstood by Lord Hutton who said at para 30:

"This leads Lord Millett on to the conclusion that in determining the liability of an accessory dishonesty is not necessary and that liability depends on knowledge."

What Lord Millett held was not that at all. He held that dishonesty IS a necessary ingredient of dishonest assistance (or knowing assistance as Lord Millett would prefer to call it), but that dishonesty is assessed on an almost entirely objective basis: para 122.

Lord Millett's preference for the label knowing assistance in para 133 has been misconstrued by Lord Hutton. That paragraph expressly dealt only with a question of semantics.

It is doubtful whether Lord Hutton, and the other Lords in Twinsectra, would have reached a different conclusion had they properly understood what Lord Millett was saying. But I would hope that, elsewhere in the common law world, and if and when Twinsectra is ever revisited by the House of Lords, Lord Millett's judgment is not similarly misunderstood.

On another note, despite the fact that Lord Millett was in dissent, does anyone doubt that the House of Lords is on the verge of saying that what Professor Birks has been contending for years is the true nature and content of the claim in "knowing receipt" is correct? See para 105.

Jonathon P Moore
Melbourne, Australia