Equitable allowances or restitutionary measures for dishonest assistance and knowing receipt

  • Derek Whayman Newcastle University
Keywords: disgorgement, equitable allowances, remoteness of gain, dishonest assistance, knowing receipt

Abstract

This article considers the credit given to dishonest assistants and knowing recipients in claims for disgorgement, with greater focus on dishonest assistance. Traditionally, equity has awarded a parsimonious ‘just allowance’ for work and skill. The language of causation in Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908 suggests a more generous restitutionary approach which is at odds with the justification given: prophylaxis. This tension makes the law incoherent. Moreover, the bar to full disgorgement has been set too high, such that the remedy is unavailable in practice. Therefore, even if the restitutionary approach is affirmed, it must be revised.

Published
2017-08-09
Section
Articles