ABSTRACT
The Court of Appeal in Novoship (UK) Ltd v Nikitin [2014] EWCA Civ 908; [2015] Q.B. 499 held that parties who have dishonestly assisted a fiduciary to breach their duty are liable to account for the profits made from such assistance. However, questions and controversies remain. Should the dishonest assistants be required to account for profits made from that assistance? If so, what principles govern the remedy?
The contemporary analyses concerning an account of profits in dishonest assistance are primarily driven by a ‘status’ centric approach. They centre on the difference, or lack thereof, in status between the dishonest assistant and the errant fiduciary before proceeding to build their respective arguments. Notwithstanding their common focus on ‘status’, the analyses have yielded three differing outcomes. It will be demonstrated that each of these analyses is flawed.
This article mounts an argument from ‘facilitative institutions’, and advocates for an ‘equal rigour’ principle to be adopted. The thrust of the analysis is this. Awarding an account of profits against dishonest assistants is justifiable on the ground that it is needed to safeguard the fiduciary relationship, a facilitative institution provided for by the law, from institutional harm. Just as the law protects the fiduciary relationship by ensuring that the fiduciary resists internal temptations, it is equally important that it repels external interferences with the relationship. By the same token, the remedial principles governing breaches of fiduciary duty should apply in equal force to dishonest assistance claims.
Tan, Weiming, Account of Profits in Dishonest Assistance, the ‘Equal Rigour’ Principle, and the Retreat from ‘Status’ (July 3, 2025).
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