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‘Dishonestly’ or ‘fraudulently’, does not mean ‘wilfully’ or ‘recklessly’ by Eugene Duhovnikoff BA/LLB

It is a usual practice in the civil litigation proceedings to claim multiple causes of action at the initial stages of proceedings. Often a situation where negligence is alleged dishonesty or fraud is also alleged. However one has to remember of the difference between the essences of these torts. When lodging a claim for fraud or dishonest behaviour, fraud and dishonesty must be:

  1. distinctly alleged; 
  2. distinctly proved; and
  3. a claim must be sufficiently particularised;

 

A plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not just negligent. The facts, matters and circumstances which are consistent with negligence would not suffice. Otherwise the plaintiff will be likely to be face with a successful strike out application against his claim.

 

Pleadings

The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. Therefore If the pleader means ‘dishonestly’ or ‘fraudulently’, it may not be enough to say ‘wilfully’ or ‘recklessly’.

 

Particulars

An allegation of fraud or dishonesty must be sufficiently particularised, and such particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. The defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud.

Usually it is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved. It has to be made clear that what is alleged was a dishonest conduct. Even at the preliminary stage when the courts assume that the alleged facts can be proven, finding that the facts support a finding of negligence, or even of gross negligence would not support the claim of fraud or dishonesty. A plaintiff must be able to show a proper case, that is, a prima facie case, for alleging fraud or dishonesty at the time of filing the pleading.

 

 

No advice

This article contains general information about legal matters. The information is not advice, and should not be treated as such.

 

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The legal information on this website is provided “as is” without any representations or warranties, express or implied. Reeves Duhovnikoff & Associates Limited makes no representations or warranties in relation to the legal information on this website. Without prejudice to the generality of the foregoing paragraph, Reeves Duhovnikoff & Associates Limited does not warrant that: the legal information on this website will be constantly available, or available at all; or the legal information on this website is complete, true, accurate, up-to-date, or non-misleading.

Professional assistance

You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider.

Reeves/Duhovnikoff & Associates Ltd. 2017

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