Open AccessEquitable allowances or restitutionary measures for dishonest assistance and knowing receipt
Author(s) -
Derek Whayman
Publication year - 2017
Publication title -
northern ireland legal quarterly
Language(s) - English
Resource type - Journals
eISSN - 2514-4936
pISSN - 0029-3105
DOI - 10.53386/nilq.v68i2.34
Subject(s) - receipt , equity (law) , causation , odds , discretion , law , allowance (engineering) , law and economics , political science , sociology , business , accounting , economics , medicine , logistic regression , operations management
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.