The redundancy of dishonest assistance

Georgina Andrews

Research output: Contribution to journalArticlepeer-review

Abstract

The ingredients of equitable liability for dishonest assistance provoked further dissent in the House of Lords in the recent case of Twinsectra Limited v Yardley, 1 when Lord Millett rejected the retention of an element of subjective dishonesty favoured by the majority, in a strong dissenting speech. The characteristics and components of equitable liability for dishonest assistance have now troubled the courts for over a century, but why is it so difficult to establish the essence of liability for dishonest assistance?
This article investigates the origins and evolution of liability for dishonest assistance and contends that this species of liability is outdated and based largely on misinterpretation of the early authorities. This article demonstrates that many of the early cases can be explained without reference to dishonest assistance, and that many others could today be dealt with without recourse to equitable intervention. The continuing inability of the courts to form any convincing consensus as to the requirements of dishonest assistance (notably the requirement of dishonesty) is explored. Finally, this article queries whether the common law has now developed to such a level of maturity that liability in equity for dishonest assistance is no longer required.
Original languageEnglish
Pages (from-to)398-410
Number of pages13
JournalConveyancer and Property Lawyer
Volume67
Publication statusPublished - 1 Sep 2003
Externally publishedYes

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