Date: Tue, 11 Oct 2005 21:23:36 -0400

From: David Cheifetz

Subject: Dishonest assistance in a breach of trust

The work of wicked academics? Yet another example, no doubt, of the 'grave danger of judges being led astray by scholastic theories and their ugly and barely intelligible jargon.' You folk don't know your own powers.

[Paraphrasing from Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd (The Wagon Mound) (No 1), [1961] AC 388 at 419 (H.L.) per Viscount Simond where the line is the "grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible jargon."]

David

----- Original Message -----
From: "Charles Mitchell"
Sent: Tuesday, October 11, 2005 4:53 PM
Subject: ODG: Dishonest assistance in a breach of trust

In Royal Brunei v Tan Lord Nicholls held for the PC that dishonesty is required for accessory liability in a breach of trust, to be measured objectively: knowing what he knew, would an honest person have done what D did? In Twinsectra v Yardley, Lord Hutton, aided and abetted by Lord Hoffmann, rewrote history and said in the HL that what Lord Nicholls REALLY meant was that liability would be incurred only by those who are self-consciously dishonest: an honest person would not have done what D did, AND D knew this when he went ahead and did it in anyway.

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