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. In British Railways Board v Herrington [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said: "The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. For present purposes, it is enough to summarise those which bear on the position of the three corporate respondents.11. In most cases the facts necessary to establish this will disclose a legal relationship between the company and its controller giving rise to legal or equitable rights of the controller over the company's property, thus making it unnecessary to pierce the veil. Or to disapply a statutory time bar which on the face of the statute applies: Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 AC 304. In these circumstances, there is obvious value in seeking to decide whether the doctrine exists, and if so, to identify some coherent, practical and principled basis for it, if we can do so in this case.66. However, the decisions can fairly be said to have rested on the doctrine if one takes the language of the judgments at face value. As Robert Goff LJ once observed, in this domain "we are concerned not with economics but with law. The judge rejected the husband's evidence that the purchase price and refurbishment costs were funded by PRL, because at that stage the company had not commenced trading operations. This is a legitimate tactical move under our adversarial system of litigation. 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. But I venture to suggest, however tentatively, that in the case of the matrimonial home, the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company. In Salomon v A Salomon and Co Ltd [1897] AC 22, the House of Lords held that these principles applied as much to a company that was wholly owned and controlled by one man as to any other company. Since, as the judge found, no rent was paid to PRL for the family's occupation of the matrimonial home, this is a particularly clear case of the husband using PRL as a vehicle to hold legal title on trust for himself.49. But the case is authority for what it decided, not for what it might have decided, and in my view the principle which the Court of Appeal applied was correct. Rimer LJ, delivering the leading judgment for the majority, held that the practice developed by the Family Division was beyond the jurisdiction of the court unless (i) the corporate personality of the company was being abused for a purpose which was in some relevant respect improper, or (ii) on the particular facts of the case it could be shown that an asset legally owned by the company was held in trust for the husband. endstream endobj 21 0 obj <>stream If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. One of these principles is that the law defines the incidents of most legal relationships between persons (natural or artificial) on the fundamental assumption that their dealings are honest. Such a course is, I would have thought, at least normally, a matter for the legislature. 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. Prest v Petrodel – a new court approach to corporate structures Background Prest v Petrodel was a “big money” divorce case, concerning assets worth in excess of £17.5million. 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. It applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. In the High Court, Moylan J concluded that there was no general principle that entitled him to reach the companies' assets by piercing the corporate veil. Lord Hanworth did not explain why the injunction should issue against the company, but I think it is clear from the judgments of Lawrence and Romer LJJ, at pp 965 and 969, that they were applying the evasion principle. In my view he was right about this. It is tolerably clear from his supplementary judgment of 16 November 2011 (on the form of the order), that this was because having decided that he was specifically authorised to dispose of the companies' properties under section 24, it was unnecessary for him to do so and undesirable because of "the potential tax consequences". I also think that provided the limits are recognised and respected, it is consistent with the general approach of English law to the problems raised by the use of legal concepts to defeat mandatory rules of law.28. The husband did not admit to having any personal interest in the shares of any company of the group, and declined to say who the ultimate shareholders were. Partly for that reason, the proceedings although in form adversarial have a substantial inquisitorial element. The husband has acted improperly in many ways. C Mitchell, in Lifting the Corporate Veil in the English Courts: An Empirical Study (1999) 3 Co Fin and Ins LR 15, 16 observes that "courts have often used conclusory terms to express their decisions on the point, which for all their vividness tell us nothing about the reasoning which underpins these decisions". Turning to what is known about the acquisition of the disputed properties, PRL acquired the legal interest in six London properties (including the matrimonial home) between 1995 and 2001. The court, adopting Lord Keith's dictum in Woolfson v Strathclyde, held that the corporate veil could be disregarded only in cases where it was being used for a deliberately dishonest purpose: pp 539, 540. :A���'J���} In A v A [2007] 2 FLR 467, paras 18-19, he drew attention to the robust approach which had always been adopted by judges of the Family Division in seeing through sham arrangements designed to hide the ownership of assets of the marriage by vesting them in relatives or companies which were in reality holding them as their nominees. As he is beneficially entitled to them, they fall within the scope of the court's power to make transfer of property orders under section 24(1 )(a) of the Matrimonial Causes Act 1973. 102. This may be illustrated by reference to those cases in which the court has been thought, rightly or wrongly, to have pierced the corporate veil.29. In other cases, the corporate entity was simply being used to conceal the real actor, or some other analysis or relationship existed (such as principal and agent, nominee or trustee-beneficiary) to explain the decision.100. The concealment principle is legally banal and does not involve piercing the corporate veil at all. In Gilford Motor, the legal argument at first instance and on appeal seems to have concentrated on the validity of the restrictive covenant (see at [1933] Ch 935, 936-93 7 and 950-952). The wife transferred her interest in the freehold of 143 Ashmore Street to PRL. 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. Decisions in which it was assumed that the doctrine existed, but it was rightly concluded that it did not apply on the facts;ii. But on the footing that he was wrong about the ambit of section 24(1)(a), it does need to be decided now. Those cases and articles appear to me to suggest that (i) there is not a single instance in this jurisdiction where the doctrine has been invoked properly and successfully, (ii) there is doubt as to whether the doctrine should exist, and (iii) it is impossible to discern any coherent approach, applicable principles, or defined limitations to the doctrine.65. But he was not entitled to order the companies' assets to be transferred to the wife in satisfaction of the lump sum order simply by virtue of section 24(1)(a). I wish, however, to add a little to what Lord Sumption says on the question of whether, and if so, in what circumstances, the court has power to pierce the corporate veil in the absence of specific statutory authority to do so.60. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party's failure to rebut it. Further, the importance of maintaining clarity and simplicity in this area of law means that, if the doctrine is to exist, the circumstances in which it can apply must be limited and as clear as possible.68. The appeal concerns the position of a number of companies belonging to the Petrodel Group which were … The judge decreed specific performance against both Mr Lipman and Alamed Ltd. As against Mr Lipman this was done on the concealment principle. There is no information about Jimmy Lawrence or the reasons for his involvement. Section 24 cannot be construed as if it were directed to that problem. Dillon LJ said (at p 292) that "if the company was a one-man company and the alter ego of the husband, I would have no difficulty in holding that there was power to order a transfer of the property." The decree of restitution of conjugal rights was abolished in the comprehensive package of matrimonial law reforms which came into force on 1 January 1971. 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. These schemes are essential for the protection of those dealing with a company, particularly where it is a trading company like PRL and Vermont. But for much of this period, the Family Division pursued an independent line, essentially for reasons of policy arising from its concern to make effective its statutory jurisdiction to distribute the property of the marriage upon a divorce. Either it then became the beneficial property of the wife (which is what equity would initially presume); or else it remained in the beneficial ownership of the husband, which is what I would on balance infer from the wife's evidence that the transfer was procured by the husband without her conscious involvement. He used PRL's assets to fund his and his family's personal expenditure, including the substantial legal costs incurred in these proceedings. This conclusion did not involve piercing the corporate veil, and did not depend on any finding of impropriety. This last view has some resonance with my remarks in VTB [2013] 2 WLR 398, para 124, about the use of pejorative expressions to mask the absence of rational analysis. !xq_$s����14U$Ԍī�*3��J�0��vQ���z2��r��v�e��N�H� �%�E�j����t{�RQW6*QE��zΪMŞ���fQ�>�IC*M�I��:�! 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 consistent with authority and long-standing principles of legal policy. This was the main basis on which the judge found that the matrimonial home was held on trust for the husband from its acquisition in 2001. In these circumstances, I was initially strongly attracted by the argument that we should decide that a supposed doctrine, which is controversial and uncertain, and which, on analysis, appears never to have been invoked successfully and appropriately in its 80 years of supposed existence, should be given its quietus. This appeal arises out of proceedings for financial remedies following a divorce between Michael and Yasmin Prest. The New Zealand Court of Appeal in Attorney-General v Equiticorp Industries Group Ltd (In Statutory Management) [1996] 1 NZLR 528, 541, said that "'to lift the corporate veil' ... is not a principle. However, I can see considerable force in the view that it is appropriate for us to address those matters now. Neither the husband nor PRL has complied with orders to disclose the loan agreement and related documents. It appears to me that such a clear and limited doctrine would not fall foul of at least most of the strictures which have been made of the doctrine. The value of the judgement was not in question, as the courts had already ruled the husband – a Nigerian oil tycoon – would have to pay his wife £17.5m, largely due to his conduct during the case, and he was not arguing over this. Prest was of particular interest because of the … At an earlier stage of the litigation, Trustor had obtained summary judgment on some of its claims against Introcom, on the footing that the payments were unauthorised and a breach of Mr Smallbone's duty as managing director, that the company was "simply a vehicle Mr Smallbone used for receiving money from Trustor", and that his knowledge could be imputed to the company. In other words, the company was restrained in order to ensure that Horne was deprived of the benefit which he might otherwise have derived from the separate legal personality of the company. The issue requires an examination of evidence which is incomplete and in critical respects obscure. Since PRL had not begun operations at that stage, I infer that the purchase money must have come from the husband. 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. The relatively short and significant judgment in the Supreme Court case of Prest v Petrodel Resources Ltd has gathered vociferous interest from academics and practitioners. Jones v Lipman [1962] 1 WLR 832 was a case of very much the same kind. But for my part I think it would be a lost opportunity - even perhaps a minor dereliction of duty - if we were to abstain from any further comment. An "entitlement" is a legal right in respect of the property in question. His conclusion was that "as a result of the husband's abject failure to comply with his disclosure obligations and to comply with orders made by the court during the course of these proceedings, I do not have the evidence which would enable me to assemble a conventional schedule of assets." Vermont was and possibly still is a trading company. �|@"��*�� Pb����"ऊ��]C� W� 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 case aroused considerable media interest, featuring on the pages of the national press even unto pictures of a rejoicing Mrs Prest! 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 the South African Supreme Court decision, Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A), 802-803, Smalberger JA observed that "[t]he law is far from settled with regard to the circumstances in which it would be permissible to pierce the corporate veil".76. The Facts. But one would wish to hear further argument on this or any other suggested exception, in a case where it was directly relevant, before deciding this. The question at issue in that case was whether the United Kingdom parent of an international mining group which was, at least arguably, managed as a "single economic unit" was present in the United States for the purpose of making a default judgment of a United States court enforceable against it in England. In itself, that is consistent with PRL being the beneficial owner if, for example, the husband provided the money to the company by way of loan or capital subscription. He found that this was established in the present case because of the power which the husband had over the companies by virtue of owning and controlling them. (3) The companies might be regarded as holding the properties on trust for the husband, not by virtue of his status as their sole shareholder and controller, but in the particular circumstances of this case. Prest v Petrodel Resources Limited and others UKSC 34 Appeal to the Supreme Court by a wife concerning properties vested in several companies and whether they could be treated in ancillary relief proceedings as beneficially belonging to the husband. The appeal concerns only the position of a number of companies belonging to the group known as the Petrodel Group which the judge found to be wholly owned and controlled (directly or through intermediate entities) by the husband. 26 0 obj <>/Filter/FlateDecode/ID[<6DD5C0427EA31A394BE6BB89A85FEF3A>]/Index[16 24]/Info 15 0 R/Length 71/Prev 103603/Root 17 0 R/Size 40/Type/XRef/W[1 3 1]>>stream this essay will discuss the instances where the court decided that there is jurisdiction to pierce the corporate veil and situation where it did not. 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. The judge declined to attach "any significant weight" to the financial data in the 2008 accounts, which he considered to have been manipulated. The judge found that the husband had "unrestricted access" to the companies' assets, unconfined by any board control or by any scruples about the legality of his drawings. 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. To decide that question, it was necessary to establish the facts which demonstrated the true legal relationship between Mr Smallbone and Introcom. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.". The judge rejected his excuse that he was in bad health, and found that he was "unwilling rather than unable to attend court." 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". AppellantRichard Todd QCDaniel LightmanStephen Trowell(Instructed by Farrer & Co) RespondentTim Amos QCOliver WiseBen ShawAmy Kisser(Instructed by Jeffrey Green Russell Ltd) LORD SUMPTIONIntroduction1. Rimer J ordered an account against both Mr Dalby and Burnstead. 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. In Constitution Insurance Co of Canada v Kosmopoulos [1987] 1 SCR 2, 10, Justice Wilson in the Supreme Court of Canada said that "[t]he law on when a court may ... '[lift] the corporate veil' ... follows no consistent principle". In any event, it seems to me that the decision in Gilford Motor that an injunction should be granted against the company was amply justified on the basis that the company was Horne's agent for the purpose of carrying on the business (just as his wife would have been, if he had used her as the "cloak"); therefore, if an injunction was justified against Horne, it was justified against the company. 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. If there is no justification as a matter of general legal principle for piercing the corporate veil, I find it impossible to say that a special and wider principle applies in matrimonial proceedings by virtue of section 24(1)(a) of the Matrimonial Causes Act 1973. Rimer J held, at para 26, that Mr Dalby was accountable for the money received by Burnstead, on the ground that the latter was "in substance little other than Mr Dalby's offshore bank account held in a nominee name", and "simply... the alter ego through which Mr Dalby enjoyed the profit which he earned in breach of his fiduciary duty to ACP." Posted by Alison Cartin on 23/06/2013. Mr Prest is of course not the first person to ignore the separate personality of his company and pillage its assets, and he will certainly not be the last. Prest v Petrodel Resources Ltd emphasises the importance of properly and transparently running companies. 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. To date, the matrimonial home has been transferred to her but only subject to a pre-existing charge in favour of BNP Paribas to secure a debt of undisclosed amount. $E}k���yh�y�Rm��333��������:� }�=#�v����ʉe This is the second case in the space of a few months when the doctrine has been invoked before this court on what are, on any view, inappropriate grounds. This showed that it was "a mere channel used by the defendant Horne for the purpose of enabling him, for his own benefit, to obtain the advantage of the customers of the plaintiff company, and that therefore the defendant company ought to be restrained as well as the defendant Horne." Flat 2, 143 Ashmore Road, is a leasehold property transferred to PRL for £1 by the wife. However, he declined to decide whether the consensus was right on an appeal from an interlocutory decision, given that, like the Court of Appeal, he considered that even if the veil were pierced the result would not be to make a company's controllers party to its contracts with third parties. Section 25 provides for a number of matters to which the court must in particular have regard in making such orders, including, at section 25(2)(a), the "income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future".4. Like lightning, it is rare, severe, and unprincipled". In so far as it is based on "fraud unravels everything", as discussed by Lord Sumption in para 18, the formulation simply involves the invocation of a well-established principle, which exists independently of the doctrine. It also accounted for Vermont, whose shares are held 49% by PRL and 51% by PRL Nigeria, and Upstream, which had a single issued share held by PRL Nevis. They may simply be examples of the principle that the individuals who operate limited companies should not be allowed to take unconscionable advantage of the people with whom they do business. This is not a liability under the general law, for example for breach of contract. But it has been applied altogether more generally, in cases which can be rationalised only on grounds of public policy, for example to justify setting aside a public act such as a judgment, which is in no sense consensual, a jurisdiction which has existed since at least 1775: Duchess of Kingston's Case (1776) 2 Smith's LC, 13th ed, 644, 646, 651. As piercing the corporate veil has any role to play, it does not appear to seriously... Process, but only identifying Mr Lipman and Alamed Ltd. as against Mr Horne and the rest left. 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