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Corporate Attribution in Private Law (Hart Studies in Private Law)

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Meridian, Allocated Powers, and Systems Intentionality Compared’ in Elise Bant (ed), Culpable Corporate Minds (Hart Publishing, forthcoming Sept 2023) A Pyrrhic Victory for Unjust Enrichment in Singapore?’(2023) 86 Modern Law Review 518-535 (with T Liau) Rachel joined the LSE Law School as Assistant Professor in Sep 2022. She is a private lawyer whose main research expertise and interests span three broad areas: the law of unjust enrichment and restitution, trusts and commercial equity, and agency law. She also has a special interest in corporate attribution in private law, the subject-matter of her doctorate and first monograph, Corporate Attribution in Private Law (Hart Publishing 2022). Her work has been cited with approval by the Supreme Court of the United Kingdom and the Singapore Court of Appeal. A claim was brought by liquidators against (amongst others) directors of the insolvent company alleging a conspiracy to defraud the company. The allegation was that there had been a carousel fraud relating to European Emissions Trading Scheme Allowances. The defendants applied to strike out the claim on the ground of ex turpi causa and in particular, it was argued that the knowledge of the directors should be attributed to the company.

Looking at key questions of how companies are held accountable under private law, this book presents a succinct and accessible framework for analysing and answering corporate attribution problems in private law. The general position is that knowledge and actions of a director will be attributed to the company, although questions of attribution are sensitive to the particular facts and this principle has been held not to apply in circumstances where what is in issue is the company’s knowledge of wrongdoing by a particular director.

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The Supreme Court also confirmed that s.213 of the Insolvency Act 1986 (which allows liquidators to seek a contribution from any person who was knowingly party to fraudulent trading by the company) has extra-territorial effect as had been previously assumed. In other words, claims can be brought against any person, wherever they are in the world. Corporate attribution is the process by which the acts and states of mind of human individuals are treated as those of a company to establish the company's rights, duties, and liabilities. But when and why are acts and states of mind attributed in private law? Ministerial Acts’ in Paul Davies and Cheng-Han Tan (ed), Intermediaries in Commercial Law (Hart Publishing, 2022)

Where a company has been the victim of wrong-doing by its directors, or of which its directors had notice, then the wrong-doing, or knowledge, of the directors cannot be attributed to the company as a defence to a claim brought against the directors by the company’s liquidator, in the name of the company and on behalf of its creditors, for the loss suffered by the company as a result of the wrong-doing, even where the directors were the only directors and shareholders of the company, and even though the wrongdoing or knowledge of the directors may be attributed to the company in many other types of proceedings.’ We look at the recent Supreme Court decision in Jetivia v Bilta [2015] UKSC 23 in relation to the question of in what circumstances will the knowledge of a director or officer of a company be attributed to the company itself. Donatio mortis causa of registered land in the Singapore High Court’ [2011] Trust Law International 145-149


A Principal’s Mental Incapacity and ‘Termination’ of the Agent’s Authority’ (2024) LQR (forthcoming) The Court of Appeal decided that the knowledge of directors in such circumstances should not be attributed to the company. It is notable that the Court of Appeal’s view was that such conclusion should apply irrespective of whether or not there was a ‘sole actor’ in control of the company and indeed earlier authorities had moved away from the position where the concept of ‘the directing mind and will’ was of principal significance in determining a question of attribution. Further, the Court of Appeal considered that the question of ex turpi causa was irrelevant to the present case.

However, the fact that a company is responsible to third parties for the actions of its directors, is not the same as the question of whether the knowledge or actions or a director should be attributed to the company – for example, vicarious liability does not involve the attribution of wrongdoing by a director (or employee) to the company, but rather imposes strict liability on the company for acts done in the course of employment. A similar question came before the Supreme Court in the case of Jetivia v Bilta [2015] UKSC 23. However, unlike Stone & Rolls, which involved a claim by the company against a third party, in Bilta the defendants were the alleged wrongdoers themselves. Two Kinds of Agency’ (2019) 93 Supreme Court Law Review 385-411 (reprinted as ‘Two Kinds of Agency’ in Jason Neyers, Andrew Botterell, Zoe Sinel (eds), Gerald Fridman and the Law of Obligations: Past, Present and Future (LexisNexis Canada, 2019)) This issue had previously been looked at by the House of Lords in Stone & Rolls v Moore Stephens [2009] 1 AC 1391. That case concerned a claim by a company in liquidation against its auditors. The claim was for alleged negligence on the basis that the auditors had failed to detect and prevent wrongdoing by the company’s sole director, as a result of which, the company became liable to various defrauded banks. The majority of the House of Lords held that the claim failed on the basis that the fraud in that case should be attributed to the company. However, the reasoning behind this decision and the question of what principles may be derived from it has given rise to much debate.

Resulting Trusts: A Victory for Unjust Enrichment?’ (2014) 73(3) Cambridge Law Journal 500-3 (with T Liau). The legal personality of management corporations in strata title developments in Singapore’ [2012] Conveyancer and Property Lawyer 75-79

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