Dishonest Assistance And Unconscionable Receipt Flashcards
Royal Brunei Airlines v Tan
If assisters acted dishonestly there will be liability even if breach wasn’t dishonest.
Twinsectra v Yardley
A combined objective and subjective test, D must know he is being dishonest by the standards of reasonable men.
Barlow Clowes v Eurotrust
Return to objective test for dishonest assistance.
Aerostar Maintenance International v Wilson
Person not free to set own standard of dishonesty.
Madoff Security v Raven
A person is personally liable for the loss suffered as a result of the breach, even if loss isn’t caused by dishonest assistance or would have occurred anyway.
Novoship v Mikhaylyuk
An assister must account for his/her share of profits made from the assistance, but it must be established that the profits were linked to the assistance.
El Ajou v Dollar Land Holdings
Three elements for unconscionable receipt; (1) disposal of his assets in breach of fiduciary duty, (2) the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff, and (3) knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.
Agip v Jackson
Beneficial receipt - there is receipt when a company’s funds are misapplied by any person whose fiduciary duty gave him control of them or enabled him to misapply them.
Baden v Societe Generale
Five types of knowledge; actual, wilfully shutting one’s eyes to the obvious, wilfully and recklessly failing to make enquiries which an honest person would have made, knowledge of circumstances which would indicate the facts to an honest and reasonable man and knowledge of circumstances which would put a reasonable man on inquiry.
Re Montagu’s Settlement
Only first three categories of knowledge relevant - actual, shutting eyes to obvious, and failing to make reasonable enquiries.
BCCI v Akindele
Recipients state of knowledge should be such as to make it unconscionable for him to retain the benefit of the receipt.
Dubai Aluminium v Salaam
Firm of solicitors vicariously liable for the acts of its own partner.
Williams v Central Bank of Nigeria
Limitation of action - dishonest assister or unconscionable recipient does not qualify as a trustee, thus an action against him is not covered by the Limitation Act (only applies to trustees)
Barnes v Addy
Suggests that assisters and unconscionable receipts could be declared constructive trustees.
