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In Salomon v A Salomon and Co Ltd. Examples are the provisions of the Companies Acts governing group accounts or the rules governing infringements of competition law by "firms", which may include groups of companies conducting the relevant business as an economic unit. It was accepted that there was an arguable defence to the claims against him for damages or compensation for breach of his duties as a director of Trustor. It is thus likely to be deployed in a very rare case. It empowers the court to order one party to the marriage to transfer to the other "property to which the first-mentioned party is entitled, either in possession or reversion". I agree with the other members of the court that the appeal should be allowed for the reasons given by Lord Sumption. The wife sought special leave to argue that the companies constituted a nuptial settlement within the meaning of section 24(1)(c) of the Act. 16. PPT – Piercing the corporate veil post prest - v- Petrodel resources limited 3rd December 2013 Simon Rainey QC and Robert Thomas QC, PowerPoint presentation | free to download - id: 674f0d-NDc5N. In the Court of Appeal, the three respondent companies challenged the orders made against them on the ground that there was no jurisdiction to order their property to be conveyed to the wife in satisfaction of the husband's judgment debt. In case of any confusion, feel free to reach out to us.Leave your message here. In Secon Serv Sys Inc v St Joseph Bank & Trust Co, 855 F2d (7th Cir, 1988), 406, 414, Judge Easterbrook in the US Court of Appeals described the doctrine as "quite difficult to apply, because it avoids formulating a real rule of decision. 4. It is not an abuse to rely upon the fact (if it is a fact) that a liability is not the controller's because it is the company's. 26. The problem about this is that if, as the judge thought, the property of a company is property to which its sole shareholder is "entitled, either in possession or reversion", then that will be so even in a case where the sole shareholder scrupulously respects the separate personality of the company and the requirements of the Companies Acts, and even in a case where none of the exceptional circumstances that may justify piercing the corporate veil applies. There is no longer any issue about that property, which is apparently in the process of being transferred to the wife. It is true that this will not always be possible, particularly in cases like this one where the shareholder and the company are both resident abroad in places which may not give direct effect to the orders of the English court. After reminding himself of what he had said in A v A and conducting a careful review of both family and non-family cases, Munby J formulated six principles at paras 159-164 which he considered could be derived from them: (i) ownership and control of a company were not enough to justify piercing the corporate veil; (ii) the court cannot pierce the corporate veil, even in the absence of third party interests in the company, merely because it is thought to be necessary in the interests of justice; (iii) the corporate veil can be pierced only if there is some impropriety; (iv) the impropriety in question must, as Sir Andrew Morritt had said in Trustor, be "linked to the use of the company structure to avoid or conceal liability"; (v) to justify piercing the corporate veil, there must be "both control of the company by the wrongdoer(s) and impropriety, that is (mis)use of the company by them as a device or facade to conceal their wrongdoing"; and (vi) the company may be a "facade" even though it was not originally incorporated with any deceptive intent, provided that it is being used for the purpose of deception at the time of the relevant transactions. (2) Ibid (3) [July/August 2013] “First Thoughts From the … The position is the same in the case of 11, South Lodge, except that this was bought with money provided by PRL at a time when it was an active trading company and could therefore have funded the purchase itself. The effect of the judge's order in this case was to make the wife a secured creditor. Nor do I doubt that the object is to achieve a proper division of the assets of the marriage. Nor is there anything in the language of section 24(1)(a) to suggest that it was Parliament's intention to grant the divorce courts an express power to "pierce the corporate veil" in such a way as to treat property belonging to a limited company as property belonging to the spouse who owns and/or controls the company. It should be noted that he decreed specific performance against the company notwithstanding that as a result of the transaction, the company's main creditor, namely the bank, was prejudiced by its loss of what appears from the report to have been its sole asset apart from a possible personal claim against Mr Lipman which he may or may not have been in a position to meet. And that it is so, howsoever thin or thick the line of distinction is considered or imagined to be. On the contrary, in Nicholas v Nicholas [1984] FLR 285, 288, Cumming-Bruce LJ said that it could not. This succeeded at first instance and in the Court of Appeal, Lindley LJ going so far as to say that "Mr Aron Salomon's scheme is a device to defraud creditors": [1895] 2 Ch 323, 339. But the recognition of a small residual category of cases where the abuse of the corporate veil to evade or frustrate the law can be addressed only by disregarding the legal personality of the company is, I believe, consistent with authority and with long-standing principles of legal policy. Whatever the husband's reasons for organising things in that way, there is no evidence that he was seeking to avoid any obligation which is relevant in these proceedings. But I do not think that he was. To share more: What is imperative and needs to be realized, in the very interests of a proper administration, so also adjudication, are these:- “Avoidance” and “evasion”, in the context of fiscal laws, are two distinct rather distinguishable concepts. But that, as the judge pointed out at para 219 "is simply [the] husband giving false evidence." Apart from that, and from cases turning on the wording of particular statutes, it held at p 536 that. That discussion demonstrates, as I see it, the following: 69. This did not involve piercing the corporate veil, but only identifying Mr Lipman as the man in control of the company. 13. The issue requires an examination of evidence which is incomplete and in critical respects obscure. 5. That was within his power, in the sense that there was no one to stop him. where a person who owns and controls a company is said in certain circumstances to be identified with it in law by virtue of that ownership and control. Such a decision would render the law much clearer than it is now, and in a number of cases it would reduce complications and costs: whenever the doctrine is really needed, it never seems to apply. Reading paragraphs 28 and 35 together, it would appear that the evasion principle not only entails: i)the existence of a legal right and ii) the interposition of a company defeating such legal right, but also iii) an intention to defeat 'that' right. It also means that the parties have a duty, not only to one another but also to the court, to make full and frank disclosure of all the material facts which are relevant to the exercise of the court's powers, including of course their resources: see Livesey (formerly Jenkins) v Jenkins [1985] AC 424. One of the few things that is clear from Mr Murphy's affidavit was that the companies' refusal to co-operate was deliberate, notwithstanding that they were conscious that the London properties (unlike the other assets) were within the jurisdiction of the court, which was in a position directly to enforce any order that it might make in respect of them. Partly for that reason, the proceedings although in form adversarial have a substantial inquisitorial element. 22. Given his evident determination to frustrate his wife's claims on him, it cannot be assumed that the assets of the company recorded in the disclosed accounts are still there. In civil law jurisdictions, the juridical basis of the exceptions is generally the concept of abuse of rights, to which the International Court of Justice was referring in In re Barcelona Traction, Light and Power Co Ltd [1970] ICJ 3 when it derived from municipal law a limited principle permitting the piercing of the corporate veil in cases of misuse, fraud, malfeasance or evasion of legal obligations. Part II of the Matrimonial Causes Act 1973 confers wide powers on the court to order ancillary relief in matrimonial proceedings. It describes the process, but provides no guidance as to when it can be used." 92. In VTB Capital plc v Nutritek International Corpn [2012] 2 Lloyd's Rep 313, VTB Capital sought permission to serve proceedings out of the jurisdiction on the footing that the borrower under a facility agreement was to be identified with the persons who controlled it, so as to make the latter in law parties to the same agreement. This contention, which has been repeated before us, raises a question of some importance. I also agree, for the reasons given by Lord Sumption, that section 24(1)(a) does not give the court power to order a spouse to transfer property to which he is not in law entitled. Where assets belong to a company owned by one party to the marriage, the proper claims of the other can ordinarily be satisfied by directing the transfer of the shares. The principle is properly described as a limited one, because in almost every case where the test is satisfied, the facts will in practice disclose a legal relationship between the company and its controller which will make it unnecessary to pierce the corporate veil. 87. 84. Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415 is a leading UK company law decision of the UK Supreme Court concerning the nature of the doctrine of piercing the corporate veil, resulting trusts and equitable proprietary remedies in the context of English family law. But that is plainly not the law. Mr Smallbone, the former managing director of Trustor, had improperly procured large amounts of its money to be paid out of its account to a company called Introcom Ltd, incorporated in Gibraltar. If it had not been, there would have been no receipt, knowing or otherwise, and therefore no claim to be evaded. 935 and Jones v Lipman [1962] 1 WLR 832 with, on the other, Genco ACP v Dalby [2000] 2 BCLC 734 and Trustor AB v Smallbone (No 2) [2001] 1 WLR 1177). The wife's evidence was that the husband paid for it. The judge did not make any finding about whether the properties of the corporate respondents were held in trust for the husband, except in the case of the matrimonial home in Warwick Avenue, which he found to be beneficially his. Management control of PRL has always been in the hands of the husband, ostensibly as chief executive under a contract of employment conferring on him complete discretion in the management of its business. Initially, there were two principal companies involved, Aurora and the Petrodel companies. The decision in Salomon plainly represents a substantial obstacle in the way of an argument that the veil of incorporation can be pierced. On this point, the case took the same course in the Supreme Court [2013] UKSC 5; [2013] 2 WLR 398, which dismissed VTB Capital's appeal. It follows that the piercing of the corporate veil cannot be justified in this case by reference to any general principle of law. 40. All of these properties were acquired by PRL before it began commercial operations and began to generate funds of its own. The judge rejected his excuse that he was in bad health, and found that he was "unwilling rather than unable to attend court." 10% of the money ordered to be paid on account of costs has been paid by the three respondents, but only in order to satisfy a condition imposed on them upon their being granted leave to appeal to the Court of Appeal. This view is supported by something Lord Denning MR said in Wallersteiner v Moir [1974] 1 WLR 991, 1013, namely it was "quite clear" that the companies in that case: 73. As I read his reasons for giving judgment against Mr Smallbone, at paras 24-25, he did so on the concealment principle. Its directors acted on his instructions. Thus in a case like VTB Capital, where the argument was that the corporate veil should be pierced so as to make the controllers of a company jointly and severally liable on the company's contract, the fundamental objection to the argument was that the principle was being invoked so as to create a new liability that would not otherwise exist. 74. But, as the judge observed, he never stopped to think whether he had any right to act in this way, and in law, he had none. The principal parties before the judge, Moylan J, were Michael and Yasmin Prest. In an age of internationally mobile spouses and assets this is a more significant problem than it once was, but such cases remain the exception rather than the rule. Prest v Petrodel Resources Ltd [2013] UKSC 34. This may be thought hard on the bank, but it is no harder than a finding that the company was not the beneficial owner at all. 50. It also chimes with Justice Cardozo's reference to the "mists of metaphor" in company law, which, "starting as devices to liberate thought, end often by enslaving it", in Berkey v Third Ave Ry 155 NE 58, 61 (1926). No-one should, however, be encouraged to think that any further exception, in addition to the evasion principle, will be easy to establish, if any exists at all. The question nevertheless arises as to whether, in a case such as this, the courts have power to prevent the statutes under which limited liability companies may be established as separate legal persons, whether in this or some other jurisdiction, being used as an engine of fraud. The judge, however, made extensive findings about this. Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Almost all the modern analyses of the general principle have taken as their starting point the brief and obiter but influential statement of Lord Keith of Kinkel in Woolfson v Strathclyde Regional Council 1978 SC(HL) 90. The Supreme Court considered that … Jones v Lipman [1962] 1 WLR 832 was a case of very much the same kind. It may be that the possibility on which I touched in para 77 would evaporate as a possible further exception to the principle in Salomon's case. In each of these cases, the right of the court to pierce the corporate veil was said to be subject to there being no third party interests engaged, such as unconnected minority shareholders or creditors. That package included, in section 4(a) of the Matrimonial Proceedings and Property Act 1970, the power to order either spouse to transfer to the other "property to which the first-mentioned party is entitled, either in possession or reversion". But the objection would have been just as strong if the liability in question had not been consensual. But where, say, the terms of acquisition and occupation of the matrimonial home are arranged between the husband in his personal capacity and the husband in his capacity as the sole effective agent of the company (or someone else acting at his direction), judges exercising family jurisdiction are entitled to be sceptical about whether the terms of occupation are really what they are said to be, or are simply a sham to conceal the reality of the husband's beneficial ownership. They did not think that there was any fraud involved simply in using a limited liability company as a vehicle for conducting a legitimate business. The same words were used in section 3 of the Matrimonial Causes Act 1884, when extending the same power to a husband's application for restitution of conjugal rights. Of the other five properties owned by PRL, the first category comprises the three properties (Flats 4 and 5, 27 Abbey Road, and Flat 2, 143 Ashmore Road) acquired by the company in December 1995 and March 1996, in each case for a nominal consideration of 1. His conclusion that they are all in the beneficial ownership of Mr Prest is in my view irresistible, based as it is on positive evidence of the sources from which the purchases were funded, as well as on inferences drawn from the failure of Mr Murphy, a director of PRL, to attend court for cross-examination. This is because I think that the recognition of a limited power to pierce the corporate veil in carefully defined circumstances is necessary if the law is not to be disarmed in the face of abuse. 7. Vermont is an oil trading company which according to the husband started lifting oil in 2010. I agree that this appeal should succeed, on the basis that the properties in question were held by the respondent companies on trust for the husband. It is clear from the judge's findings of fact that this particular husband made free with the company's assets as if they were his own. But for the court to deploy its authority to authorise the appropriation of the company's assets to satisfy a personal liability of its shareholder to his wife, in circumstances where the company has not only not consented to that course but vigorously opposed it, would, as it seems to me, be an even more remarkable break with principle. The circumstances in which property held by a company can be attributed to those who control it gained considerable publicity in Prest v Petrodel Resources Ltd & Others [2013] UKSC 34.The case played out … However, I have reached the conclusion that it would be wrong to discard a doctrine which, while it has been criticised by judges and academics, has been generally assumed to exist in all common law jurisdictions, and represents a potentially valuable judicial tool to undo wrongdoing in some cases, where no other principle is available. But this was inconsistent with the company's financial statements, and the judge rejected it. In this case, the court recognised that there may be times in which it is appropriate to pierce the veil and ignore a company’s separate … Because Mr Lipman owned and controlled Alamed Ltd, he was in a position specifically to perform his obligation to the plaintiffs by exercising his powers over the company. Flat 4, 27 Abbey Road was transferred by the husband, who had originally bought it in his own name in 1991, before PRL was incorporated. Many cases will fall into both categories, but in some circumstances the difference between them may be critical. It is also true that most cases in which the corporate veil was pierced could have been decided on other grounds. The only evidence on behalf of the respondent companies was an affidavit sworn by Mr Jack Murphy, a director of PRL and the corporate secretary of the three respondent companies, who failed to attend for cross-examination on it. The Adobe Flash plugin is needed to view this content. The result would have been exactly the same if Burnstead, instead of being a company, had been a natural person, say Mr Dalby's uncle, about whose separate existence there could be no doubt. I also agree that cases concerned with concealment do not involve piercing the corporate veil at all. The husband's evidence was that the company had engaged in substantial agricultural and oil related business in the 1990s, in part in association with his then employer, Marc Rich. There was no formality involved. It seems to me that two distinct principles lie behind these protean terms, and that much confusion has been caused by failing to distinguish between them. It was simply an application of the principle summarised by the Vice-Chancellor at para 19 of his judgment, that receipt by a company will count as receipt by the shareholder if the company received it as his agent or nominee, but not if it received it in its own right. DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852. 19. 106. The attempt failed in the Court of Appeal because the court was not satisfied that that would be the consequence of piercing the corporate veil even if it were legitimate to do so: see paras 90-91. Only then will they constitute property to which the husband is "entitled, either in possession or reversion." 104. But the consensus that there are circumstances in which the court may pierce the corporate veil is impressive. But when we speak of piercing the corporate veil, we are not (or should not be) speaking of any of these situations, but only of those cases which are true exceptions to the rule in Salomon v A Salomon and Co Ltd [1897] AC 22, i.e. Cumming-Bruce LJ (at p 287) thought that, in that situation, "the court does and will pierce the corporate veil and make an order which has the same effect as an order that would be made if the property was vested in the majority shareholder." Trustor AB v Smallbone (No 2) [2001] EWHC 703 The lack of any coherent principle in the application of the doctrine has been commented on judicially in many of the major common law jurisdictions. In Salomon v A Salomon and Co Ltd [1897] AC 22 the purpose was to go behind the separate legal personality of the company in order to sue Aron Salomon personally for a liability that was legally that of the company which he had set up (with himself and members of his family as shareholders) to conduct his leather and boot-making business. They may result simply from the potency of an injunction or other court order in binding third parties who are aware of its terms. However, it is right to note (i) that the ownership of residential investment property in London appears to have nothing to do with the oil trading business in which PRL was then engaged, and (ii) that at this stage of the history a consistent pattern can be discerned by which the husband causes properties to be acquired with funds provided by himself by companies under his control, nominally funded by PRL but in fact by himself. Connell J made such an order in Green v Green [1993] 1 FLR 326. 45. It will not. But it does not follow that the courts will stop at nothing in their pursuit of that end, and there are a number of principled reasons for declining to give the section the effect that the judge gave it. The judge rejected his explanation that his health was not up to it. As against Mr Horne, the injunction was granted on the concealment principle. To decide that question, it was necessary to establish the facts which demonstrated the true legal relationship between Mr Smallbone and Introcom. But the fiction is the whole foundation of English company and insolvency law. The group was "effectively the husband's money box which he uses at will.". Wisniewski v Central Manchester Health Authority, British Railways Board v Herrington [1972] AC 877, n rale des Carri res et des Mines v FG Hemisphere Associates LLC [2012] UKPC 27. Prest v Petrodel Resources Ltd UKSC 34, [2013] R v McDowell [2015] EWCA Crim 173. The evident absence, under the close scrutiny to which Lord Sumption has subjected the case-law, of authority for any further exception speaks for itself. 2 Prest v Petrodel Resources Ltd [2013] 3 WLR 1 at [8], per Lord Sumption. In the company's financial statements for 2008, the two properties are listed as its only assets and there were no liabilities apart from the bank loans charged on Flat 310, Pavilion Apartments. contains alphabet). These schemes are essential for the protection of those dealing with a company, particularly where it is a trading company like PRL and Vermont. However, this was not a distinction that was discussed in the course of the argument and, to my mind, should not be definitively adopted unless and until the court has heard detailed submissions upon it. R v Singh [2015] EWCA Crim 173. 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