Casio Computer Co Ltd v Sayo & Ors

A claim based on dishonest assistance in a breach of trust is a matter relating to tort, delict or quasi-delict within Article 5(3) of the Brussels Convention. The accessory’s dishonest assistance may itself constitute the harmful event, although English law classifies the liability as equitable rather than tortious.

The required causal connection is between the damage and the breach of trust dishonestly assisted. The claimant need not establish the accessory’s precise causal contribution. The harmful event may occur where a bank account is used as the instrument by which the money is received and removed.

Under Article 6(1), connected claims should be assessed by a broad, common-sense approach. A real risk of conflicting findings on facts or law central to the defendants’ respective liabilities can make separate judgments irreconcilable.

Casio alleged that its employees and associates fraudulently obtained US$30 million and moved US$25 million through accounts in several jurisdictions. It claimed that Mr Kaiser, who was domiciled in Spain, dishonestly assisted breaches of trust by procuring a company to receive Casio’s money through an English bank account and then transfer it abroad.

Anthony Mann QC, sitting as a deputy High Court judge in the Chancery Division, held that the English courts had jurisdiction. He found that the dishonest-assistance claim fell within Article 5(3) of the Brussels Convention and that the harmful event occurred in England. He also found jurisdiction under Article 6(1) because the claim was sufficiently connected with the claim against an English-domiciled defendant, Miss Patel.

The appeal concerned whether dishonest assistance was pleaded, whether it fell within Article 5(3), where the harmful event occurred, and whether the claims were sufficiently connected for Article 6(1).

1. The appeal was dismissed unanimously. Lord Justice Tuckey delivered the leading judgment. Lady Justice Arden agreed. Lord Justice Pill also agreed and added reasons concerning Article 5(3) of the Brussels Convention.

2. The pleaded allegations were sufficient to advance dishonest assistance. They alleged that Tsuru held the money on constructive trust, that Kaiser possessed the requisite knowledge, and that Kaiser personally or through OVM dishonestly procured its receipt for a purported investment and its subsequent transfer. The pleading therefore contained the material facts required for that claim despite its lack of clarity.

3. Per Tuckey LJ, dishonest assistance falls within Article 5(3). The liability is accessory and equitable, rather than a tort under English domestic law, but the accessory’s dishonest conduct can itself be a harmful event. The autonomous Convention classification was not confined by English divisions between common law and equity. The required causal connection existed because loss resulting from the assisted breach of trust is recoverable from the accessory. A precise assessment of the causal contribution made by the assistance was unnecessary.

4. The harmful event occurred in England. The English Alpha account was the instrument by which OVM first obtained the money and by which the money was moved beyond Tsuru’s control. The pleading alleged that Kaiser procured and directed those movements. Taking a broad view, the location of that account supplied the relevant connection under Article 5(3). Once jurisdiction existed, the court could consider all consequences of the assisted breach wherever they occurred.

5. Article 5(3) did not itself extend jurisdiction to a distinct knowing-receipt claim merely because jurisdiction existed over dishonest assistance. Whether knowing receipt would independently fall within Article 5(3) was left undecided because Article 6(1) supplied jurisdiction.

6. Article 6(1) also applied. The test of irreconcilability was broadly the same as the related-actions test under Article 22 and required a broad, common-sense assessment. Irreconcilability was not confined to mutually exclusive legal consequences; conflicting findings on material facts could suffice.

7. Separate English and Spanish proceedings created a real and substantial risk of inconsistent findings about whether Tsuru acted in breach of duty. That issue was central to the claims against both Kaiser and Patel and depended materially on oral evidence and credibility. The claims were therefore sufficiently closely connected. The request for a reference to the European Court of Justice and permission to appeal to the House of Lords were refused.

1. Court of Appeal (Civil Division): The defendants’ appeal was dismissed unanimously. The court upheld jurisdiction under Articles 5(3) and 6(1) of the Brussels Convention.
2. High Court, Chancery Division: Anthony Mann QC, sitting as a deputy High Court judge, held that the dishonest-assistance claim fell within Article 5(3), that the harmful event occurred in England, and that Article 6(1) independently conferred jurisdiction through the connected claim against an English-domiciled defendant. No citation is stated in the judgment.