“The requirement of proof of absence of honest belief does not however mean that the claimant must prove the defendant's knowledge of the falsity of the statement, it is enough to establish that the latter suspected that his statement might be inaccurate, or that he neglected to enquire into its accuracy without proving that he actually knew it was false … If a person takes it upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they know to be untrue.”
“Once it is proved that a false statement was made which is ‘material’ in the sense that it was likely to induce the contract, and that the representee entered the contract, it is a fair inference of fact (though not an inference of law) that he was influenced by the statement, and the inference is particularly strong where the misrepresentation was fraudulent. There is no set list of matters that might rebut the presumption which arises from a fraudulent statement. One is to show that the misrepresentee had already firmly made up his mind, but even then the misrepresentation might have induced him not to change his mind”
“Rescission is an act of the parties which, when validly effected, entitles the party rescinding to be put in the position he would have been in if no contract had been entered into in the first place. It involves a giving and taking back on both sides. If it is necessary to have recourse to an action in order to implement the rescission, the court will make such orders as are necessary to put both contracting parties into the position they were in before the contract was made. There is, however, also a line of authority supporting the proposition that, upon rescission of a contract for fraudulent misrepresentation, the beneficial title which passed to the representor under the contract revests in the representee. The representee then enjoys a sufficient proprietary title to enable him to trace, follow and recover what, by virtue of such revesting, can be regarded as having always been in equity his own property. This may be an essential means of achieving a proper restoration of the original position if the representor has in the meantime parted with the property and is ostensibly a man of straw unable to satisfy the court's orders for restoration of the original position.”
“A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to combination or agreement between the defendant and another person or persons to injure him by unlawful means whether or not it is the predominant purpose of the defendant to do so.”
“… The law imposes on agents high standards. Footballers’ agents are not exempt from these. An agent’s own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client. (emphasis added). That duty should not cause an agent any problem. All he or she has to do to avoid being in breach of duty is to make full disclosure. Any agent who is doubtful about his position would do well to do just that – the mere fact that he has doubts will generally be a message from his conscience. As … counsel for Mr Jack put it, all an agent has to do is to give the player details of any side-deals that may form part of his transfer arrangements. Sunlight is, after all, the best of disinfectants.” arrangements. Sunlight is, after all, the best of disinfectants.”
“There is little guidance in the authorities about how the requirement that, if it is to be regarded as a bribe or secret profit, a payment or promise must be made to, or some other benefit conferred on, an agent as such. However, I cannot accept that this argument provides a defence to the liability of an agent, or of one who pays an agent, where the payment gives rise to an actual or potential conflict of interest. The law imposes what Mummery LJ in Imageview Management Ltd. v Jack[2009] 1 Lloyd's Rep 436 , 446 called a “precise and firm line” against payments to agents where they compromise either of the two aspects of the duty to account of an agent or other fiduciary, which were stated by Lord Herschell in Bray v Ford[1896] AC 44 , 51-2: “It is an inflexible rule of a Court of Equity that a person in a fiduciary position … is not, unless otherwise expressly provided, entitled to make a profit; he is not entitled to put himself in a position in which his interest and his duty compete. As I see it, often both aspects of the duty to account converge when a bribe is paid to an agent, but a payment that compromises either is treated as a bribe. If the complaint is on the basis that the fiduciary must not benefit from his fiduciary position, the question will arise whether the payment was to the agent or other fiduciary "as such", because the mischief is that the fiduciary must not profit by reason of or in virtue of his fiduciary position. Here the complaint of the claimants is that the benefits by way of holidays and credit cards gave rise to a conflict of interest or the realistic potential for one, and the law does not excuse an actual or potential conflict of interest because it arises from a payment made to the fiduciary in some other capacity and not because he was an agent or other fiduciary: it still regards the payment as a bribe, unless there has been full disclosure.”
“The agent and the third party are jointly and severally liable to account for the bribe, and each may also be liable in damages to the principal for fraud or deceit or conspiracy to injury [sic] by unlawful means. Consequently, the agent and the maker of the payment are jointly and severally liable to the principal (1) to account for the amount of the bribe as money had and received and (2) for damages for any actual loss. But the principal must now elect between the two remedies prior to final judgment being entered: Mahesan s/o Thambiah v Malaysia Government 72. The third party may also be liable on the basis of accessory liability in respect of breach of fiduciary duty: Bowstead & Reynolds on Agency, para 8-221. The principal is also able to rescind the contract with the payer of the bribe.”
“… obvious that if the employee of a parent is required by that parent to work for one of its subsidiaries as a banker handling loans and dealing with its financial affairs, the employee must owe fiduciary duties as much to the subsidiary in connection with the financial affairs that the employee is required to handle, as he would to the parent employer in connection with its own financial affairs.”
“Before considering this issue further it will be helpful to define the terms being used by looking more closely at what dishonesty means in this context. Whatever may be the position in some criminal or other contexts (see, for instance, Reg. v. Ghosh [1982] Q.B. 1053), in the context of the accessory liability principle acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another's property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour. In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others’ property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries. Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless. However, in the situations now under consideration the position is not always so straightforward. This can best be illustrated by considering one particular area: the taking of risks.”
“… first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.”
“The defendant must be at fault when he receives the trust property. This justifies his continuing liability to restore its value to the claimant even after he may no longer have the original property to restore by a proprietary claim. Fault means that the defendant must know enough of the facts surrounding the misapplication of trust property to make it unconscionable for him to retain the benefit of his receipt. Earlier tests for fault, which drew subtle distinctions between different degrees of a defendant’s awareness, have been abandoned as being excessively refined. The degree of knowledge which might make the defendant’s conduct unconscionable varies with the context. This allows the court to set a standard that is appropriate to exigencies of the transaction in question. The essential distinction is between knowledge implying that the defendant was in some degree subjectively aware of the wrongful or unauthorised source of the property he received, and knowledge that would put a reasonable person in his situation on inquiry about the origins of the property. In commercial transactions where there is no customary practice of making routine inquiries into title and where transactions need to be concluded promptly, the defendant may need to be subjectively aware that he is receiving tainted property before his receipt could be stigmatised as unconscionable. His knowledge of the facts may shade into dishonesty, as that term is now defined. Constructive notice in the formalised sense that that term is used in dealings with unregistered land would be too exacting a standard to apply to the defendant. But in gratuitous transactions, where the defendant has no reasonable justification to rely unquestioningly on the trustee’s authority to transfer the property to him, it may be reasonable to impose a duty of inquiry on him. The recipient’s knowledge of facts that would put a reasonable person on inquiry might amount to unconscionable knowledge. This standard would be applied to determine whether the defendant was a bona fide purchaser for value who was liable to a proprietary claim to restore the property.”
“The doctrine of notice lies at the heart of equity. Given that there are two innocent parties, each enjoying rights, the earlier right prevails against the later right if the acquirer of the later right knows of the earlier right (actual notice) or would have discovered it had he taken proper steps (constructive notice). In particular, if the party asserting that he takes free of the earlier rights of another knows of certain facts which put him on inquiry as to the possible existence of the rights of that other and he fails to make such inquiry or take such other steps as are reasonable to verify whether such earlier right does or does not exist, he will have constructive notice of the earlier right and take subject to it.”
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence.”
“It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.”
“I have also kept well in mind that although the standard of proof is the civil standard, the balance of probabilities, the cogency of the evidence relied upon must be commensurate with the seriousness of the conduct alleged.”
“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator.”
“It is, however, the essence of a successful case of circumstantial evidence that the whole is stronger than individual parts. It becomes a net from which there is no escape. That is why a jury is often directed to avoid piecemeal consideration of a circumstantial case: R v. Hillier (2007) 233 ALR 63 (HCA), cited in Archbold 2012 at para 10-3. Or, as Lord Simon of Glaisdale put it in R v. Kilbourne[1973] AC 729 at 758, “Circumstantial evidence … works by cumulatively, in geometrical progression, eliminating other possibilities””
“… he called him in my presence and told - we are going to give you an answer by Tuesday …”
“Can you please send me the distribution between the people. 5 for everyone?”
“Yes, 5 for everyone.”
“62. I should emphasise that this was the very first time that the question had been raised with me. I knew that we had agreed (and Mr Lokhov well knew) that I had discretion over the signing-on pool just as I would have discretion over the bonus pool. The team was moving over for$25 million . That had been agreed by at least11 October 2011 . How that$25 million was to be distributed or dealt with among the recipients was my concern. It was not a concern of OSM/OSL: it simply wanted the team to come over for the amount they were paying. 63. I understood Mr Lokhov’s request to relate to an administrative matter for OML/OSL and nothing more. On that basis I was happy to confirm it. I believed Mr Lokhov was simply asking “have you any problem if we do it like this?”, to which my answer was “no, whatever suits you.””
“I would like you to come to Moscow so you can meet key people and (the) shareholders and make a proposal (an offer).”
“Mr Lokhov briefed me that he had met with Mr Urumov in London and there is a team that is happy to negotiate with us about them moving to our entity, but then the sign-on fee, in Mr Lokhov’s opinion, would be quite high.”
“No, the reason why we agreed to pay that amount was the expectation that their team would be able to earn over$50 million over a year.”
“I think it has been said. Because I had three meetings with Mr Urumov I don’t remember where he said that but it was always the case. No doubt about it all.”
“Mr Urumov did not say such a thing to me personally”
“Why can’t we book these trades direct to you??”
“Everything is being settled in dollars, there is no FX at all, there is just a dollar price, dollar settlement, dollar notional, so we should forget about FX, there is no FX there.”
“The exchange rate of Peso/dollar according to Middle Office is 1:1. The market value of this bond is 15.5 peso or 3.65 USD.”
“Pinaev: Did you see that woman? Jemai: Yes. Pinaev: Did you tell her. Jemai: Yes. Pinaev: And what did she respond. Jemai: … that she doesn’t understand anything … [inaudible] Pinaev: Who has done the Argentinean trade just now? Jemai: I did. Pinaev: You transferred it to Gavinic right? Jemai: Yes, yes. I told her that we were going to close this trade … [inaudible] … She asked me: “In what currency?”
“Pinaev: I don’t give a f***, it’s not my problem? I have just spoken to Chepeleva about this. We should not give a f***. We have just sent an email out. Alright, Zhenka? Just do one FLOW book. Jemai: Do you want me to adjust the system for you so that you can see this security? I can see it so it is OK. Pinaev: No: just do one book for me, Gavinic or not Gavinic – I don’t give a s**t. Jemai: OK. Pinaev: Just … so I could see this book, so I could see all of this. Jemai: OK, I will do it now. I will go upstairs and tell her that everything is in dollars. Pinaev: Yes, everything is in dollars, bond/warrant is in dollars. For f*** sake, give me her number, I will call her myself. Jemai: Her phone number is 4727. Mikhailova – 4727 … Pinaev: Wait a second …”
“Pinaev: So this is probably one of those cases where you will have to accept our quote. Mikhailova: We will have to do what? Pinaev: You will probably have to accept our quote. You will see, at the time of sale, the price for this security. We will be selling it tomorrow or the day after tomorrow. We already have a bid, we are just trying to squeeze the client. Mikhailova: It’s quite strange, considering high liquidity of this security that Bloomberg still displays incorrect prices. Pinaev: Well, yes, but this is the case. It is also impossible to make tickets for this security in dollars there [in Bloomberg?] only in Argentinean pesos. However, only locals who are based in Argentina, can trade in pesos. This security is denominated in pesos but is being traded in dollars, so the tickets are issued in dollars at the rate of 1:1 …”
“Please calm down Shamarin as he is starting to get on my nerves. I just do not have the time to deal with this correspondence 20 times a day … I am off to a meeting with the client …”
“So the meeting with the client in regards to our deal and custody went not as expected. I was told to fuck off to put it mildly. He told that he already has an offer from the competitor for whole volume. While we were making a decision and were meeting with risks etc, other guys outplayed us. He asked why we told him that we can do this if our risks are not allowing us to do this. I kinda told him that we can also [do this], but for lesser sum. All in all he told me that he is not a charity to pay us USD 3 million per deal. He says that we can’t do anything, have to give him back this PL somehow by offsetting on account of another deal. Otherwise he will not open custody nor dvp lines and will mark us in BLACK BOX. This will be complete disaster. Basically very bad situation. Me and Sasha had very big plans in regards to this client – PL + USD25 million and Custody 1BN. This cannot go on like this. How are we going to handle this? I think Sasha will have to really kiss the client’s ass to somehow sort this out. On the whole, if we manage to come to an agreement with the client for partial volume, and then we back down, then we will have no business from this client. Plus he will really damage our reputation on the market! We are not yet goldman sachs and cannot afford to do this. After today’s fiasco, Sasha barely managed to convince him to meet again tonight. What do I tell him?”
“He asked why we told him that we can do this if our risks are not allowing us to do this.”
“Dima hi, After having thoroughly polished the client’s bottom we have agreed the following terms: 1) Price of the deal: market minus 3 figures (12% in the context of today’s market 15.5-16, this is 20% discount. 2) ISIN ARARGEO3E147 3) volume 1650M, in cash at today’s prices 206.25 million dollars. 4) trade 09/03/11 T+3, settlement 14/03/11 5) monthly rollover 6) 6 months term (depends on custody account opening procedure.)”
“Counteragent Threadneedle (will clarify the precise name)”
“Pls contact Allesandro Gherzi for additional information on this bellow [sic] trade”
“… hi Amigo … listen I wanted to ask you something we are having a big trade, it is in priority, we don’t have any traders …”
“Morning, Kakdela? [How are you?] Please send me all the details concerning today’s Argent trade.”
“I see. I don’t care who is going to be at the first leg but for the second leg there should be a name that is consolidated, I mean, affiliated with Threadneedle, which consolidates with it …”
“… Ruslan [Pinaev] told me he apparently found a counterparty … Need to check with him again, I will give him a call …”
“… I mean the external story, when we are asked. So externally we are going to report that this is no f***ing buy-sell that we bought this paper from some idiots and then sold it at the spot…”
“You see, these details were discussed between Urumov and Pinaev, when they met” and “… I will discuss this with Ruslan [Pinaev] now, because Ruslan met with them for dinner last week, they all met and discussed these questions … But I think, yes, the incoming will be through I don’t know who – I am waiting to hear from them who is going to switch it… And for the outgoing, yes, I think it will be Threadneedle, most likely”
“… my management was calling me with regards to this big trade … they just f*** my brain in here …”
“The security is denominated in Peso – in Bloomberg and in open sources. We are buying for USD – and it looks like the exchange rate ARS/USD is 1.0000, and not the current market rate (ARS/USD = 0.2484). Can someone from sales (Pinaev, Jemai) officially comment on this situation to the following list of addressees. Thanks!”
“Dmitry, to confirm the full name of the counterparty on the outgoing leg of the trade is Threadneedle Asset Management.”
“We have to look carefully at this company – going to enter into transaction of 200 MLN (buy-sell)”
“Gersamia: … well focus … OK … I am here just in case … otherwise push … Gherzi: … yes, mate, pushing like giving birth … and its triplets. Gersamia: … well mate … if a child is best gifr for a person … to triples … it is x3 … so push harder mama. Gherzi: … oh man I am so sick of it … everyone wants something from me, they f*** my brains all morning … it is not a triplets any more, it is a happy fat dozen …”
“Is a 20% discount per month enough for the security in this volume?”
“Dear All, As discussed on numerous occasions regarding this trade, I would like to ONCE AGAIN explain and state that this security is traded in USD. For this security ARS prices are strictly for the local market, however on the international grounds all prices are in USD. I would like to remind you that we have already traded this security (bought at USD 13.02 and sold at USD 15.47) generating a significant profit as per attached tickets.”
“hence you are kindly requested to stop reverting with the same questions. Thanks and best regards, Eugene.”
“Dear All, As discussed on numerous occasions regarding this trade, I would like to ONCE AGAIN explain and state that this security is traded in USD. For this security ARS prices are strictly for the local market, however on the international grounds all prices are in USD. I would like to remind you that we have already traded this security (bought at USD 13.02 and sold at USD 15.47) generating a significant profit. Thanks and best regards, Eugene.”
“Gersamia: Signore … send me text when u give birth … K? Gherzi: … aaalmost there … just spoke all OK. It seems all polished out … so closing it tod … Gersamia: … anyway … let me know pls … as wanna take a picture … of those newborn: - () Gherzi: … it’s a very ugly one … the proverbial donut without a hole …”
“About the size, about the prices, I need it all, if it has to be broken down in some way, who should it be sent to, as much information as possible about what I have to do, I don’t know.”
“Why are you calling him?”
“Well just to find out all the details from him.”
“As far as I understand we will be buying from our client as follows: OSL buys 1650mm at todays market price – 3 points therefore around 12.9375 … GV buys from OSL 800mm at 12.9375 … Bank buys from OSL 850 mm at 12.9375 … End of Month GV sells to OSL 800MM at 15.9375 … Bank sells to OSL 850MM at 12.9915 (5% monthly) … OSL sells to client 1650MM at today’s price of 15.9375.”
“OK Dima, tell me one thing, can I make a deal with the client … by?”
“… and for sell of course, straight away for sell”
“So one deal for buy and two deals for sell … 800, 850”
“Gherzi: … yes mate all good spoke to risk and deputy ceo they approved everything … just spoke to them now … so all is OK … Gersamia: … great Gherzi: … all sorted so God willing no more pains on this front … Gersamia: … I am already getting dodgy looks. Gherzi: … yap it is ridiculous for publicly listed funds to get all this back and forth going … bah Gersamia: … that’s it … go ahead … I am here … waiting … Gherzi: … everything is OK. All approvals are given and they are closing it as we speak I am being told … Gersamia: … there … I want OT say something funny … I’ll tell u later:”
“He started yapping about “oh no, the lawyers have to check it”
“…it could have been Lokhov or it could have been sombody pretending to [be] Mr Lokhov and [he] would not know the difference”
“…And what if he [Mr Gersamia] tells me in response that I [Mr Urumov], that we [Mr Urumov/Mr Lokhov?] offered him a bribe? And takes out the recording?”
“We have used the word ‘alleged’ in relation to these incidents because no evidence was adduced by the plaintiffs as to the details of them, or indeed that they had ever happened. In fact, it is difficult to see how they could have called such evidence. Since this cross-examination went to credit, the appellants were obliged to accept his answers and could not call affirmative evidence of the matters put, unless they qualified as ‘similar fact’ evidence, which they did not in this case.”
“The criminal courts have been very careful not to admit such [similar fact] evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.”
“… the favour was to receive money from Mara’s [i.e. Ms Kovarska’s] account and forward it to another company. I don’t remember the exact reason but it sounded pretty real at that time. The payment was done to another company after couple of days when the money was received …”
“The distinction between these two heads of claim is that in a knowing receipt claim, liability is imposed for the (beneficial) receipt of the proceeds of a fraud, whereas in a dishonest assistance claim, liability is imposed because of the defendant’s participation in a fraud. It may, of course, be possible for the receipt of the fraud proceeds to amount to assistance for the purpose of a dishonest assistance claim. But given that the receipt must be the defendant’s beneficial receipt (i.e. for his own purpose/own benefit) it does not so readily fall into the category of assistance to the main perpetrator by way of receipt of some of the fraud proceeds.”
“Where it is not said that the third party has induced the breach but has provided assistance, it is necessary to show that the relevant assistance played more than a minimal role in the breach being carried out: Baden v Societe Generale[1983] 1 WLR 509 , 574 … [If] the breach has been completed prior to the assistance being provided, it is likely that the court will conclude that there was no assistance as such with the breach: Brown v Bennett[1998] 2 BCLC 97 , 105 – affirmed on this point by the Court of Appeal[1999] 1 BCLC 649 .”
“Mr McGhee submits that a plaintiff must prove that the dishonest assistance has itself caused the loss suffered by the plaintiff. Otherwise, he submits, the plaintiff's claim should fail for lack of causation or lack of any relevant assistance. The starting point in my view is that the requirement of dishonest assistance relates not to any loss or damage which may be suffered, but to the breach of trust or fiduciary duty. The relevant enquiry is in my view what loss or damage resulted from the breach of trust or fiduciary duty which has been dishonestly assisted. In this context, as in conspiracy, it is inappropriate to become involved in attempts to assess the precise causative significance of the dishonest assistance in respect of either the breach of trust or fiduciary duty or the resulting loss. To that extent the accessory nature of the liability presently under consideration distinguishes the present from the situation in Target Holdings Ltd. v Redferns[1996] 1 AC 421 , where the House of Lords was concerned with a simple breach of trust. But it is necessary to identify what breach of trust or duty was assisted and what loss may be said to have resulted from that breach of trust or duty. An allegation of a single and continuing conspiracy to commit and cover up a misappropriation is one thing. But it may involve a series of breaches of trust or fiduciary duty. The actual loss may have resulted at the early stage of misappropriation, rather than from the cover up. Dishonest assistance confined to the cover up stage may not or not necessarily attract liability for such previous loss.”
“Paragraphs 13 and 14 of the Notice of Appeal criticise the judge’s approach to causation, arguing that GT failed to establish a causal link between any acts or omissions on the part of Mr Folchi and the loss which the judge found GT to have sustained. However, we think the judge was right when he said: “... the requirement of dishonest assistance relates not to any loss or damage which may be suffered but to the breach of trust or fiduciary duty. The relevant enquiry is ... what loss or damage resulted from the breach of trust or fiduciary duty which has been dishonestly assisted. In this context, as in conspiracy, it is inappropriate to become involved in attempts to assess the precise causative significance of the dishonest assistance in respect of either the breach of trust or fiduciary duty or the resulting loss.”
“… thanks yes it is for actt opening etc…” but, in my view, it is plain from other entries that they are talking about the execution of a particular deal on that day which can only be a reference to the Second Trade. Thus, again at the sake of repetition, at 14:37:48, Mr Gherzi says: “… everything is ok all approvals are given and they are closing as we speak I am being told…”; and at 15:38:44, Mr Gherzi says “… booking it now internally so assume all closed …”, to which Mr Gersamia responds: “ok”
“Supranonok: dude by the way… “Gersamia: not here !.. “Supranonok: !...”
“… main parcel … should be there ready to pick up from post office” which would seem inexplicable other than as a cryptic and disguised reference to this transfer. The purpose of the US$ 300,000 payment was originally said by Mr Gersamia to have been “the provision of market analysis and advice in the shipping industry” including a written report disclosed late (which the interlocutory evidence suggested was generic and obtainable from various Russian-based websites for a small fee). Although Mr Gersamia does not accept that, he acknowledges that the payment would indeed have been excessive for the report alone: he now suggests that more advice was given or promised by way of “consulting and advisory services in the field of physical agricultural trading”
“2. My only involvement with Vantax is limited to 1 day, in spring 2010, I believe it was in May 2010, when I helped to incorporate the company. I was in Latvia at the time, visiting my father and a dentist. I received a phone call from my mother, Olessia Jemai, who told me that her long time trading partners, Mr. Rakhimov and Mr. Mirzoaliev require assistance to incorporate their company. She received this request from Mr. Rakhimov and, given my location at the time, asked me whether she could transmit my phone number to Mr. Rakhimov who would contact me directly and whether I could assist him. 3. Mr. Rakhimov then contacted me directly and asked me if I could help him with the incorporation of the company. I was told that this was very temporary in nature and that an agent would get in touch with me to organise everything. 4. Given that my role would be only very temporary, I agreed to assist as I previously met Mr. Rakhimov in Geneva and I knew that himself and Mr. Mirzoaliev were active in cotton business and did business together with Jecot since 1990s. 5. I met an agent in Latvia, who presented me with some documents that I had to sign. I do not remember exactly which documents I have signed and I do not remember which role I had in the company, but I remember that one of the documents I have signed was an undated resignation form. I remember this, because the agent told me that this would be used to remove me from the company. I also had to give a copy of my passport. 6. I have NEVER signed any of the documents for or on behalf of Vantax following that 1 day in spring 2010, when I helped to incorporate the company.”