CLP Lecture:

Speaker: Professor Lusina Ho (University of Hong Kong)

Chair: The Right Hon Lord Briggs of Westbourne (The Supreme Court)

Abstract

The fault element in the claim of dishonest assistance has been the subject of protracted controversy. The test of dishonesty was adopted by Lord Nicholls in Royal Brunei Airlines v Tan [1995] 2 AC 378 to replace the previous one of knowledge, resulting in two decades of heated debate. It was only recently that the Supreme Court in Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2017] UKSC 67, [2018] AC 391 reaffirmed the objective test in Tan. Ivey was applied by the Court of Appeal in Group Seven Ltd v Notable Services LLP [2019] EWCA Civ 614, [2019] All ER (D) 02 (May), which was adamant to let it ‘settle down and be applied by trial judges’.

However, Ivey and Group Seven are unlikely to be the last words on the meaning of dishonesty, as the judgments leave open a few vexed issues. For example, should the test stipulate what essential facts the defendant needs to know? Dishonest conduct clearly includes cases of ‘blind-eye knowledge’. Should it also include recklessness or other cases as well? Would the defendant’s own perception of the standards of his profession or community be relevant to the objective test of dishonesty? Finally, is dishonesty an appropriate criterion at all? In this lecture, Prof Ho will explore these issues.

About the Speaker

Lusina Ho is the Harold Hsiao-Wo Lee Professor in Trust and Equity at the Faculty of Law, the University of Hong Kong. Her main research interests are in the law of trusts and equitable remedies, comparative trusts, and elder law.

She is the author of Trust Law in China (Sweet & Maxwell Asia 2003), and has edited essay collections on Trust Law in Asian Civil Law Jurisdictions: A Comparative Analysis (CUP 2013)(with Rebecca Lee) and Special Needs Financial Planning (CUP 2019)(with Rebecca Lee). She has published widely in the areas of her interests, and has been consulted by the Government of the People’s Republic of China on the enactment of the Chinese Trust Law (2001) and the Government of the Hong Kong SAR on the reform of the Trustee Ordinance (2014). Her research led to the setting up of the Special Needs Trust Scheme by the Hong Kong Government in 2018 for the benefit of individuals with special needs.