The Mental Element in Equitable Accessory Liability

Abstract

Ever since Royal Brunei Airlines v Tan laid down the test of dishonesty, there has been heated debate over the test. This paper argues that the essence of ‘dishonest’ assistance is willing participation in a breach of trust in the sense that the assisters endorse or accept their causal role in bringing it about. Three implications flow from this theoretical basis. First, the mental element should be fixed at the minimum level necessary to reflect such endorsement, and not vary according to the degree of causal contribution to the primary wrong. Second, neither the test of dishonesty nor that of knowledge fully captures the requisite mental element for endorsement. Third, a test framed in terms of intention and belief with respect to the core elements of a breach of trust would better identify the mental element of accessory liability in equity. The reformulated test would bring much-needed transparency to the court’s determination of the mental element and coherence with accessory liability in criminal law and contract law.