Transworld Payment Solutions UK Limited v First Curaçao International Bank N.V. & Anor

The court holds that mere provision of banking services or marketing support does not suffice for accessory liability: an assister must provide more-than-minimal assistance to particular transactions that caused the plaintiff's loss and the assister must have known of or wilfully ignored the wrongdoing. Limitation and foreign‑insolvency principles limit many late equitable claims; failure to disclose parallel settlement negotiations can forfeit later asserted rights under applicable foreign law.

Parties & context: Liquidator claimants (Transworld Payment Solutions UK Ltd (in liquidation) and its liquidator) sued First Curaçao International Bank N.V. and Mr John Deuss alleging that bank accounts and related services facilitated MTIC ("carousel") VAT fraud and seeking equitable compensation and contributions.

Procedure & issues: Extensive trial of primary and accessory liability (dishonest assistance, knowing participation), proprietary/contractual defences (IPSAs and Curaçao judgment), limitation (Limitation Act 1980 s.21; s.32 discovery), and choice of law (Rome II/curacao law on pre-contractual forfeiture).

Outcome in brief: The court dismissed the claims: many VAT/assessment figures or chains were not proved; accessory/dishonesty required particularised proof and subjective knowledge (Ivey/Tan) not made out; substantial limitation and foreign‑law (Curaçao) forfeiture issues barred or defeated remaining claims.

1. Disposition: All claims dismissed. The court found insufficient and/or time‑barred evidence to impose accessory liability or to sustain the pleaded equitable or statutory claims against FCIB or Mr Deuss. The claimants also forfeited rights under Curaçao law by their conduct in the IPSA negotiations.
2. Dishonest assistance: The claimant must prove (a) a fiduciary breach by company directors, (b) assistance by the defendant which is more than minimal and causally connected to the loss, and (c) defendant dishonesty under the Ivey test (subjective awareness then objective standards). The court applied these requirements to each MTIC company individually and dismissed many claims where specific transactional links through FCIB accounts were not proved or where dishonesty of the named individual was not established.
3. Assistance scope: Supplying bank accounts or marketing (TWPS) and certifying documents can assist, but liability requires showing the defendant enabled the specific transactions causing the VAT assessments; generalized banking provision alone is insufficient. On the facts the court disallowed accessory liability in a number of individual claims where no traceable payments or decisive documentary links existed.
4. Dishonesty: Claimants failed to prove Mr Deuss actually knew or wilfully blinded himself to the specific fraudulent transactions alleged; his contemporaneous conduct (setting up enhanced‑due‑diligence, creating an RMC, commissioning transaction‑monitoring) was consistent with an honest businessman attempting to manage risk. Individual allegations of institutional or personal dishonesty were rejected.
5. Limitation: Direct accessory claims attract the six‑year period in s.21(3) Limitation Act 1980. The court rejected application of the "General Rolling Stock" suspension to Curaçao Emergency Measures; modified universalism does not displace domestic limitation. Many direct and indirect claims were therefore statute‑barred. The court analysed s.32 discovery for surviving indirect claims and identified which liquidators could with reasonable diligence have discovered the relevant matters before the relevant cut‑off dates.
6. Curaçao litigation & IPSAs: The Curaçao First Instance judgment (29 July 2024) held that the claimants had forfeited rights by conduct in the IPSA negotiations (rechtsverwerking / forfeiture). Applying Rome II the court held Curaçao law governed the pre‑contractual and forfeiture question, and on the facts found the claimants had forfeited the right to pursue the TWPS claim (and related claims) because they had negotiated and represented the scope of the settlement and failed to disclose the revived TWPS claims when the IPSAs were concluded, thereby unreasonably prejudicing the bank.
7. Practical guidance: When asserting dishonest assistance in large, document‑rich banking disputes the claimant must trace funds to particular accounts/transactions, prove the assister gave more than minimal assistance to those transactions, and establish the assister's actual or blind‑eye knowledge. Where insolvency or cross‑border settlements are involved, limitation and private‑international‑law issues (including pre‑contractual disclosure and forfeiture under foreign law) can be decisive.
8. Orders & costs: The claims are dismissed; there are no further remittals stated in the judgment and costs were not determined in the judgment summary (see formal order).