Remedies for Dishonest Assistance

Abstract

The paper considers the nature of claims against dishonest assistants and the various money remedies those claims may evoke. Dishonest assistance is a form of civil secondary liability whereby the assistant is held jointly and severally liable along with the trustee whose misconduct he assisted. This is the sense in which dishonest assistants are said to be accountable as constructive trustees. In order to understand remedies available against dishonest assistants it is accordingly necessary to understand the corresponding remedies against defaulting trustees and what it means for them to be accountable. The paper examines the two different types of compensation that may be awarded against defaulting trustees—substitutive and reparative—and observes that the same two types of compensation may be given against dishonest assistants in appropriate cases. It also explores the circumstances in which trustees and dishonest assistants should be accountable for profits and whether they should ever be liable to pay exemplary damages. A strict application of the theory of civil secondary liability produces controversial results in connection with these latter remedies.