CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow and Jae Shin, Appleby
Although intent to injure the victim of the conspiracy is required, it is not necessary for this to be the sole
pany Limited), the UK Supreme Court has held that a claim for knowing receipt will fail where the claimant’s proprietary equitable interest has been extinguished or overridden by the time of the defendant’s know - ing receipt of the property in question ( Byers v Saudi National Bank [2023] UKSC 51). A claim in knowing receipt is a personal claim, not a proprietary claim. 1.4 Limitation Periods For most claims by victims of fraud, the limitation period is six years from the date on which the cause of action accrues, which is usually the date when the damage was suffered. Where there has been fraud, deliberate concealment or mistake, the six-year period does not begin to run until the claimant has discovered, or could with reasonable diligence have discovered, the fraud, concealment or mistake. The Cayman court will treat the English authorities as rel - evant to construction if the Cayman provision is mate - rially identical to the English provision ( Primeo Fund v Bank of Bermuda (Cayman) Ltd [2023] UKPC 40). There is no limitation period for a claim by a benefi - ciary under a trust in respect of a trustee’s fraud or a trustee’s conversion of property. 1.5 Proprietary Claims Against Property A claimant may assert an equitable proprietary claim in respect of any property that they were induced by fraud to transfer, as well as in respect of property representing the converted proceeds of the initially- transferred property (which is identified by the pro - cess of tracing). Such a claim may be asserted against the fraudulent party to whom the claimant’s property was transferred. Such a claim may also be asserted against any person who subsequently receives the property (or its traceable proceeds) either: • with notice of the fraud at the time of receipt; or • for no consideration (ie, as a volunteer). However, a proprietary claim will not be available against a party that acquires the property or its trace - able proceeds as a purchaser in good faith with - out notice of the fraud at the time of receipt – such receipt will extinguish the proprietary claim, unless the property is re-acquired by a previous recipient of the property against whom a proprietary claim would have
or predominant intention. Lawful means conspiracy
This involves two or more parties agreeing or com - bining to do lawful acts with the sole or predominant intent of injuring the victim, resulting in damage being suffered by the victim. The tort of lawful means con - spiracy can make two parties liable for an act that would not have given rise to liability if it had only been carried out by one party. One of the difficulties is prov - ing sole or predominant intent to injure; a common defence is for the defendant to claim that they were pursuing their own self-interest. Dishonest Assistance Liability for dishonest assistance involves liability on the part of a non-fiduciary for being an accessory to breach of trust by a fiduciary. The elements are: • a breach of trust or fiduciary duty; • the defendant procuring, inducing or assisting in the breach; and • the defendant acting dishonestly in so doing. The accessory must have not acted as an honest person would, in the circumstances, have acted. In applying this test, it is assumed that an honest person would not participate in a transaction if they know that it involved a misapplication of trust assets ( Royal Brunei Airlines Sdn Bh v Tan [1995] 2 AC 378). Knowing Receipt Liability for knowing receipt involves a party receiv - ing assets in breach of trust in circumstances where it would be unconscionable for that party to retain those assets. Liability for knowing receipt requires a disposal of assets in breach of a trust or custodial fiduciary duty, the beneficial receipt by the defendant of assets that are traceable as representing the claim - ant’s assets, and the defendant’s knowledge that the assets received are traceable to a breach of fiduciary duty ( El Ajou v Dollar Land Holdings PLC (No 1) [1994] 2 All ER 685). In a case involving a company that went into liquida - tion in the Cayman Islands (Saad Investments Com -
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