Dishonesty is a serious allegation and must not be pleaded lightly: rolled-up plea is insufficient
By Nick Hoffman, Anya Park, Vicky Lord Harney Westwood & Riegels LLP From ILO
The Grand Court has set out the requirements for pleading a cause of action of dishonest assistance and reaffirmed the established principles of the defence of estoppel. The decision in William Ritter and Geneva Insurance SPC Limited (In Voluntary Liquidation) v Butterfield Bank (Cayman) Limited (Unreported, Cause G 224 2015, 29 May 2018, Williams J) provides welcome comfort to corporate entities with robust and thorough systems for detecting fraud.
Facts
The claim related to fraudulent transactions in the sum of $725,177 which were made at the request of a former director of Geneva Insurance. The plaintiffs claimed that in making the payments on the basis of forged requests, the bank was liable for:
breach of contract;
negligence; and
dishonest assistance.
Decision
The Grand Court dismissed the claim of dishonest assistance on the grounds that the pleading was defective and there was no evidence that the bank deliberately allowed fraudulent transactions to be processed. The court also rejected the claims for breach of contract and negligence on the basis that the plaintiffs were estopped from advancing such claims due to a failure to inform.
Dishonest assistance
The court held that in cases of dishonest assistance against a corporate entity, a particular individual or individuals must be identified (by their role if their name is not known) as having acted dishonestly. The statement of claim must identify:
what the defendant did to assist in the breaches of fiduciary duty or trust;
how the assistance caused, contributed or resulted in the plaintiff’s loss; and
how the defendant is alleged to have acted dishonestly in assisting the main perpetrator.
It is not enough to use a so-called ‘rolled-up plea’ and claim that the corporate entity was or should have been aware of fraudulent actions by the main perpetrator to establish dishonest assistance.
A dishonest assistance claim should not be tacked on to the less serious claims of breach of contract and negligence. Where dishonesty and negligence claims are made based on similar facts, dishonesty must be clearly pleaded first and confined to the fraud, with negligence then pleaded separately. The court reiterated that dishonesty is a serious allegation and must not to be pleaded lightly.
Estoppel defence
The court found that Ritter had been aware of the forgeries for almost one year before he informed the bank and that his silence was deliberate, holding that:
Ritter’s intentional failure to inform the bank amounted to a representation;
the bank relied on the representation; and
the reliance was to the bank’s detriment as it lost the opportunity to recover loss from the main perpetrator, who by this stage had no assets.
For further information on this topic please contact Nick Hoffman or Anya Park at Harney Westwood & Riegels’ Grand Cayman office by telephone (+1 345 949 8599) or email ([email protected] or [email protected]). Alternatively, contact Vicky Lord at Harney Westwood & Riegels’ Hong Kong office by telephone (+852 5806 7800) or email ([email protected]). The Harney Westwood & Riegels website can be accessed at www.harneys.com.
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