Chapter 16: Liability of Strangers Flashcards
Multiple claims against different people
Sometimes, the claimant will have multiple potential claims against diferent people. While their
primary claim will be against the wrongdoer (ie the trustee or other fiduciary), sometimes it will
not be worthwhile making a claim against them or it may not be possible to fully recover from
them. The most obvious example is the case where they are in financial difculties or even
bankrupt and do not have professional indemnity insurance to satisfy the claim against them. In
such cases, it is useful to have someone else to sue.
Liability of Strangers
There are two key claims that can be made against a ‘stranger’ to the trust:
(a) A claim for accessory liability (also known as ‘dishonest assistance’)
(b) A claim against the recipient of the traceable proceeds of a breach of trust (often known as
‘knowing receipt’)
In practice, such claims (particularly claims for accessory liability) are often made against
professional advisers to the trustee or fiduciary or, in the case of a breach by a company, against
employees or directors of that company
Accessory liability
Accessory liability (also known as dishonest assistance) is a form of secondary liability which gives
a claimant the right to sue a third party for the loss caused by the trustee or fiduciary (as well as
any profit received by the third party). To establish dishonest assistance, it is necessary to show that the third party assisted the breach (by helping to plan it, carry it out or cover it up) and acted objectively dishonestly in doing so.
Recipient Liability
The other way in which a stranger can be liable is receipt-based and allows the claimant to recover the amount of money beneficially received by a third party. Knowing receipt is available in cases where the third party has knowledge making it unconscionable for them to retain the funds. This requires an assessment of the circumstances and their level of knowledge.
Recipient liability
It is important to note that if the recipient still has the property (or its traceable proceeds) the
claimant may choose to make a proprietary claim against the asset itself. Knowing receipt is more
useful in cases where it has been dissipated by the recipient, meaning a proprietary claim is no
longer available.
Alternative Claims
Often, claims for accessory liability and recipient liability will be brought in the alternative against
the same defendant. This is because the requirements for the two are slightly diferent, so one
claim may succeed where the other fails.
Remedy is also different
The remedy is also diferent, so sometimes it will be more beneficial to succeed in one claim or the
other. In particular, a claim for dishonest assistance may result in a greater remedy because the
assistant will be liable for the loss caused, whether or not they personally benefitted. A knowing
receipt claim is generally limited to the value of what has been beneficially received by the third
party.
Introduction to Accessory Liability (Personal Claim)
When a trustee misapplies trust property, the beneficiaries have a number of potential claims.
One such claim is a personal claim against a person who dishonestly assisted or procured the
breach of trust. This claim is a form of accessory liability and is generally described as ‘dishonest
assistance’. Dishonest assistance is a fault-based claim: a defendant is only liable if their
assistance was dishonest.
Apply to breaches of fiduciary duties
Dishonest assistance claims are not limited to the misapplication of trust property. They also
apply to breaches of fiduciary duties by a trustee. For example, a person who dishonestly bribes a
trustee to invest in a particular (authorised) investment is liable as a dishonest assistant.
Nor are these claims limited to trusts: they apply to breaches of duty by other fiduciaries.
Requirements
In Group Seven Ltd v Nasir [2019] EWCA Civ 614, para 29, the Court of Appeal said that:
in order to find a person liable for dishonest assistance of a breach of trust, it is necessary to
establish that:
(a) there was a trust in existence at the material time;
(b) the trustee committed a breach of that trust;
(c) the defendant assisted the trustee to commit that breach of trust; and
(d) the defendant’s assistance was dishonest.
The same principles apply to breaches of fiduciary duty.
Assistance
The defendant must assist the trustee or fiduciary in connection with the breach. It is sufcient if
the defendant assists the trustee or fiduciary to plan, commit, or cover up the breach.
The assistance must be more than minimal. And it must make the commission of the breach (or its
concealment) easier than it would otherwise have been. See, generally, Ultraframe (UK) Ltd v
Fielding [2005] EWHC 1638 (Ch) and Group Seven.
More than minimal
The defendant cannot avoid liability by proving that the trustee or fiduciary would have
committed the breach even if the defendant had not assisted them. If the defendant assists, they
are liable.
It is also sufcient if the defendant procures or instigates the breach of duty: Eaves v Hickson
(1861) 30 Beav 136.
Dishonestly (Objective Standard)
A person who assists a trustee or fiduciary to commit a breach of duty is only liable if they act
dishonestly. In Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, Lord Nicholls said (at 389) that ‘acting
dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances’. This approach to dishonesty was endorsed and more fully elaborated by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. Lord Hughes
JSC said (at para 74):
Fact-finding Tribunal must first ascertain
When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the
actual state of the individual’s knowledge or belief as to the facts. […] When once his actual
state of mind as to knowledge or belief as to facts is established, the question whether his
conduct was honest or dishonest is to be determined by the fact-finder by applying the
(objective) standard of ordinary decent people
Objective Standard determined by judge
In the context of civil proceedings, the judge is the ‘fact-finder’. The standard of ordinary decent
people is determined by the judge.
Key case: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
Facts: The claimant airline appointed a company to sell tickets for its flights. The company agreed
to hold the proceeds from the sale of the tickets on trust for the claimant. In breach of trust, the
company applied the proceeds for its own purposes. The company went insolvent.
The defendant was the company’s managing director and principal shareholder. The claimant
sued him for dishonest assistance.
Key case: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
Held: The defendant was liable. He knew that the proceeds from the sale of the tickets were held
on trust. And he caused the company to apply them for its own purposes and in breach of its duty
to the claimant.
Lord Nicholls observed (at 389) that honest people do not misappropriate or misapply other
people’s property, nor do they assist others to do so.
Key case: Starglade Properties Ltd v Nash [2010] EWCA Civ 1314
Facts: Larkstore Ltd held money on trust for the claimant as part of a broader commercial
arrangement. Nash was Larkstore’s sole director. Nash knew that Larkstore was unable to pay its
debts. He caused Larkstore to pay the trust money to Larkstore’s unsecured creditors. He did so to ‘frustrate’ the claimant, because he considered that the claimant had unfairly imposed the commercial arrangement on Larkstore. Nash did not know that there was a trust. He believed that the claimant was an unsecured creditor of Larkstore. His object was to reduce the
assets available for distribution in a winding up. The claimant sued Nash for dishonest assistance.
Key case: Starglade Properties Ltd v Nash [2010] EWCA Civ 1314
Held: Nash was liable. He caused the company to misapply the trust property and he did so
dishonestly.
Morritt C said that the ‘deliberate removal of the assets of an insolvent company so as entirely to
defeat the just claim of a creditor’ was inconsistent with ‘ordinary standards of honest commercial
behaviour’.
It did not matter that Nash was unaware that the arrangement between Larkstore and the
claimant had given rise to a trust. Objectively, a trust had arisen and had been breached by
Larkstore. Nash had assisted the breach of trust and was found to have done so dishonestly
Remedies: Not required to show direct link
A dishonest assistant is liable for the loss occasioned by the breach which they assisted. The
claimant is not required to show a direct link between the assistance and the loss. ‘What must be
shown is that the conduct assisted the breach of trust and that but for the breach of trust the loss
would not have occurred’: Group Seven.
Potentially liable for profits (Real and effective cause)
A dishonest assistant is also potentially liable for profits they acquire by reason of their
participation in the breach: Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908. But the
claimant must demonstrate that their participation was the ‘real’ or ‘effective’ cause of the profits.
The simple ‘but for’ test is not sufficient.
No automatic right
Moreover, the claimant does not have an automatic right to the assistant’s profits. The court has a
discretion to grant or withhold the remedy. The court withholds the remedy where it would be
disproportionate in relation to the form and extent of the assistant’s wrongdoing.
Key case: Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908
Facts: The defendant negotiated with the claimant’s agent to charter some ships. As a result of
the negotiations, the claimant chartered the ships to the defendant. The terms of the charters
were favourable to the claimant.
During the negotiations
* The agent was being paid secret commissions by charterers of the claimant’s other vessels in
connection with earlier transactions; and
* The agent was diverting part of those commissions to the defendant
Key case: Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908
Held:
* The agent’s negotiations with the defendant were a breach of his fiduciary duty to the
claimant (because the agent was conflicted);
* The defendant assisted the breach by participating in the negotiations; and
* The defendant’s assistance was dishonest because he was aware of the secret commissions
that were being paid to the agent (and, in part, redirected to him).