“We have suspended the whole Mobigo service until we are comfortable that we know what has occurred. As soon as you can give us a full report on how service was accessed without the tester seeing our PFI pages/buttons, we will get closer to that point.”
“Failure to supply the information specified above may result in a breach of paragraph 3.1.4 and/or 4.2.5 of the Code being upheld against you.”
“The Executive recommends that a formal reprimand is imposed. The Executive recommends that a fine of£175,000 is imposed. … The Executive recommends a ‘naming’ investigation against James McAteer.”
“85. I ask that the court makes finding that the Respondents or either or both of them were in breach of such duties or either of them in that they (or any one of them): (a) failed to ensure that all reasonable steps were taken to ensure that the Service in its operation abided by PSA’s Code of Practice; (b) caused or allowed the Company to operate a service in breach of PSA’s Code of Practice; (c) failed to ensure the Company responded to requests from PSA; (d) caused or allowed the Company to fail to respond to requests from PSA; (e) failed to ensure the Company responded to the Warning Notice from PSA; (f) caused or allowed the Company to fail to respond to the Warning Notice from PSA; (g) caused or allowed the Second Respondent’s name and email address to be put forward as a contact address for PSA in the knowledge that she knew little or nothing about the business, its obligations and the responsibilities and powers of PSA; (h) caused or allowed the Company to fail to maintain any or any adequate Registered Office or otherwise ensure that correspondence was received and read; (i) caused or allowed the Company to fail to maintain any or any adequate system whereby emails from PSA would be read and responded to; (j) misrepresented to the Registrar of Companies and generally that the First Respondent had resigned as a director on11th April 2015 when it was known that he had not so resigned and had instead remained in primary control of the Company throughout; (k) caused or allowed the Company’s emails and other correspondence to be lost; (i) failed to take such necessary steps so as to retain the Company’s books and records; (m) conspired to present the Second Respondent as being in sole control of the Company when in truth the First Respondent remained in primary control; (n) substantially neglected their duties as directors from11th April 2005 , alternatively, on or about4th February 2016 , onwards; (o) failed to engage with Imi/Tap2bill in relation to the requests that, if answered, might have led to the restoration of the Service; and (p) in the premises, failed to act with reasonable care, skill and diligence and/ or failed to act in the way they considered, in good faith, would be most likely to promote the success of the Company.”
“86. By reason of the matters set out above, the Company: (a) breached or further breached its obligations pursuant to the Code of Practice; and / or (b) was not in a position to respond to and defend, or properly respond to and defend, the allegations set out in the Tribunal proceedings and thereby suffered loss and damage in the form of the imposition of a fine, alternatively an increased scale of fine, and administrative charges payable to PSA as a matter of law.”
“87. I also allege that the Respondents breached their fiduciary duties including the aforesaid duty to consider the interests of creditors) by: (a) continuing to pay themselves from the Company after the Service had been suspended; and/ or (b) paying large sums to a third party (JC Consultancy) in circumstances wherein there is no evidence that any (or any proper) value was given, and that the Company suffered a loss in this misapplication of funds.” and that the Company suffered a loss in this misapplication of funds.”
“(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.” (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
“contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.”
“first, the court should determine whether the claimant’s conduct was an abuse of process; and if so, secondly, the court should exercise its discretion as to whether to strike out the claim.”
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ”
“It is generally not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact: Farah v British Airways, The Times,26 January 2000 CA referring to Barrett v Enfield BC[1989] 3 WLR 83 , HL[1999] 3 All ER 193 ”
“Duty to promote the success of the company (1) A director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have regard (amongst other matters) to— (a) the likely consequences of any decision in the long term, (b) the interests of the company’s employees, (c) the need to foster the company’s business relationships with suppliers, customers and others, (d) the impact of the company’s operations on the community and the environment, (e) the desirability of the company maintaining a reputation for high standards of business conduct, and (f) the need to act fairly as between members of the company. (2) Where or to the extent that the purposes of the company consist of or include purposes other than the benefit of its members, subsection (1) has effect as if the reference to promoting the success of the company for the benefit of its members were to achieving those purposes. (3) The duty imposed by this section has effect subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company.”
“Duty to exercise reasonable care, skill and diligence (1) A director of a company must exercise reasonable care, skill and diligence. (2) This means the care, skill and diligence that would be exercised by a reasonably diligent person with— (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and (b) the general knowledge, skill and experience that the director has.” (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and (b) the general knowledge, skill and experience that the director has.”
“No court will lend its aid to a man who founds his cause of action on an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted. It is on that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis “The Defendant’s position is better” .”
“The modern law has now culminated in Gray v Thames Trains Ltd[2009] AC 1339 when Lord Hoffmann said, at para 30, that it expressed not so much a principle as a policy, and at para 32, that it was a rule which may be stated in a narrower form and a wider form. In its narrower form it is that a claimant cannot recover for damage which is the consequence of a sentence imposed upon him for a criminal act; in its wider version it is that a claimant may not recover for damage which is the consequence of his own criminal act. Both versions of the rule are often in play, as they are in the present case because it is said that recovery of the penalty likely to be imposed by the OFT is recovery for the consequence of a sentence for the criminal (or quasi-criminal) act of entering into an illegal agreement, whereas recovery of the costs of the OFT investigation is recovery for the consequences of making the illegal agreement. The main difference between the application of the two forms of the rule appears to be that there is no question of any causation problem in the application of the narrower version, whereas difficult problems of causation may (in theory) arise if it is only the broader version of the rule on which reliance can be placed: see Gray’s case[2009] AC 1339 , para 51. The rationale of the maxim is the need for the criminal courts and the civil courts to speak with a consistent voice. It would be inconsistent for a claimant to be criminally and personally liable (or liable to pay penalties to a regulator such as the OFT) but for the same claimant to say to a civil court that he is not personally answerable for that conduct.”
“The OFT may impose a penalty on an undertaking under subsection (1) or (2) only if the OFT is satisfied that the infringement has been committed intentionally or negligently by the undertaking.”
“No one is liable for the penalty imposed by the 1998 Act except the relevant undertaking. The liability is therefore personal to the undertaking. If there is a liability it cannot be imposed on any person other than the undertaking, and the undertaking is personally liable for the infringement. If a penalty is imposed it will only be because the undertaking itself has intentionally or negligently committed the infringement. In those circumstances it is the undertaking which is personally at fault (there can be no one else who is), and once the maxim is engaged the undertaking cannot say that it was not personally at fault in order to defeat the application of the maxim. The whole hypothesis of the undertaking’s liability is that it is personally at fault.”
“Only if the undertaking itself bears the responsibilities and meets the consequences of their non-observance are the public protected. A deterrent effect is contemplated and the obligation to provide effective preventive measures is upon the undertaking itself.”
“Where a company has been the victim of wrongdoing by its directors, or of which its directors had notice, then the wrongdoing, 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/or on behalf of its creditors, for the loss suffered by the company as a result of the wrongdoing, 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.”
“38 One way or another, it is certainly unjust and absurd to suggest that the answer to a claim for breach of a director’s (or any employee’s) duty could lie in attributing to the company the very misconduct by which the director or employee has damaged it. A company has its own separate legal personality and interests. Duties are owed to it by those officers who constitute its directing mind and will, similarly to the way in which they are owed by other more ordinary employees or agents. All the shareholders of a solvent company acting unanimously may in certain circumstances (which need not here be considered, since it is not suggested that they may apply) be able to authorise what might otherwise be misconduct towards the company. But even the shareholders of a company which is insolvent or facing insolvency cannot do this to the prejudice of its creditors, and the company’s officers owe a particular duty to safeguard the interest of such creditors. There is no basis for regarding the various statutory remedies available to a liquidator against defaulting officers as making this duty or its enforcement redundant. … 41 As Lord Hoffmann made clear in Meridian Global, the key to any question of attribution is ultimately always to be found in considerations of context and purpose. The question is: whose act or knowledge or state of mind is for the purpose of the relevant rule to count as the act, knowledge or state of mind of the company? Lord Walker NPJ said recently in Moulin Global, para 41 that: ‘One of the fundamental points to be taken from Meridian is the importance of context . . . in any problem of attribution.’ Even when no statute is involved, some courts have suggested that a distinction between the acts and state of mind of, on the one hand, a company’s directing mind and will or ‘alter ego’ and, on the other, an ordinary employee or agent may be relevant in the context of third party relationships… 42 Where the relevant rule consists in the duties owed by an officer to the company which he or she serves, then, whether such duties are statutory or common law, the acts, knowledge and states of mind of the company must necessarily be separated from those of its officer. The purpose of the rule itself means that the company cannot be identified with its officers. It is self-evidently impossible that the officer should be able to argue that the company either committed or knew about the breach of duty, simply because the officer committed or knew about it. This is so even though the officer is the directing mind and will of the company. The same clearly also applies even if the officer is also the sole shareholder of a company in or facing insolvency. Any other conclusion would ignore the separate legal identity of the company, empty the concept of duty of content and enable the company’s affairs to be conducted in fraud of creditors. 43 At the same time, however, if the officer’s breach of duty has led to the company incurring loss in the form of payments to or liability towards third parties, the company must be able as part of its cause of action against its officer to rely on the fact that, in that respect, its officer’s acts and state of mind were and are attributable to the company, causing it to make such payments or incur such liability. In other words, it can rely on attribution for one purpose, but disclaim attribution for another. The rules of attribution for the purpose of establishing or negating vicarious liability to third parties differ, necessarily, from the rules governing the direct relationship inter se of the principal and agent.”
“18 As well as dismissing this appeal on the attribution issue on the same grounds as Lord Sumption JSC, Lords Toulson and Hodge JJSC would also dismiss the appeal on the grounds of statutory policy. They suggest it would make a nonsense of the statutory duty contained insection 172(3) of the Companies Act 2006 (and explained by them in their paras 125—127), if directors against whom a claim was brought under that provision could rely on the ex turpi causa or illegality defence. That defence would be based on the proposition, relied on by the appellants in this case, that, as the directors in question (here the first and second defendants, Mr Nazir and Mr Chopra) were, between them, the sole directors and shareholders of Bilta, their illegal actions must be attributed to the company, and so the defence can run. 19 I agree with Lords Toulson and Hodge JJSC that this argument cannot be correct. Apart from any other reason, it seems to me that Lord Mance JSC must be right in saying in his para 47 that, at least in this connection, the 2006 Act restates duties which were part of the common law. It also appears to me to follow that, if Lords Toulson and Hodge JJSC are right about the proper approach to the illegality principle, then their reasoning in paras 128—130 would be correct.”
“128 It is argued on behalf of the appellants that it would offend against the doctrine of illegality for the claim to succeed. It is said that the fact that the errant directors were in sole control of the company makes it unlawful for the company to enforce their fiduciary duty towards it. If this were the law, it would truly deserve Mr Bumble’s epithet – ‘an ass, a idiot’. For it would make a nonsense of the principle which the law has developed for the protection of the creditors of an insolvent company by requiring the directors to act in good faith with proper regard for their interests. 129 It has been stated many times that the doctrine of illegality has been developed by the courts on the ground of public policy. The context is always important. In the present case the public interest which underlies the duty that the directors of an insolvent company owe for the protection of the interests of the company’s creditors, through the instrumentality of the directors’ fiduciary duty to the company, requires axiomatically that the law should not place obstacles in the way of its enforcement. To allow the directors to escape liability for breach of their fiduciary duty on the ground that they were in control of the company would undermine the duty in the very circumstances in which it is required. It would not promote the integrity and effectiveness of the law, but would have the reverse effect. The fact that they were in sole control of the company and in a position to act solely for their own benefit at the expense of the creditors, makes it more, not less, important that their legal duty for the protection of the interests of the creditors should be capable of enforcement by the liquidators on behalf of the company. 130 For that reason in our judgment this appeal falls to be dismissed. The courts would defeat the very object of the rule of law which we have identified, and would be acting contrary to the purpose and terms of sections 172(3) and 180(5) of theCompanies Act 2006 , if they permitted the directors of an insolvent company to escape responsibility for breach of their fiduciary duty in relation to the interests of the creditors, by raising a defence of illegality to an action brought by the liquidators to recover, for the benefit of those creditors, the loss caused to the company by their breach of fiduciary duty. In everyday language, the purpose of the inclusion of the creditors’ interests within the scope of the fiduciary duty of the directors of an insolvent company towards the company is so that the directors should not be off the hook if they act in disregard of the creditors’ interests. It would be contradictory, and contrary to the public interest, if in such circumstances their control of the company should provide a means for them to be let off the hook on the ground that their illegality tainted the liquidators’ claim.”
“31 I turn, finally, to Safeway Stores Ltd v Twigger. Lord Sumption JSC has accurately summarised the effect of the decision in his para 83. Lords Toulson and Hodge JJSC deal with it a little more fully and much more critically in their paras 157—162. I would take a great deal of persuading that the Court of Appeal did not arrive at the correct conclusion in that case. However, I do not believe that it would be right on this appeal to express a concluded opinion as to whether the case was rightly decided, and, if so, whether the reasoning of the majority or of Pill LJ was correct. It is unnecessary to reach any such conclusion and the points were not argued in detail before us: indeed, they were hardly addressed at all.”
“83 Safeway Stores was an action against a number of directors and senior employees of a supermarket group who by exchanging pricing information with competitors had caused the company to contravenesection 2 of the Competition Act 1998 . Undersection 36 of the Act , the company became liable to a penalty, provided that the OFT was satisfied that it had committed the infringement ‘intentionally or negligently’. Safeway was not a one-man company, but the statutory scheme had the peculiarity, which was critical to the reasoning of the Court of Appeal, that the offence was not capable of being committed by the individuals directly responsible. The Act imposed the prohibition and the resulting penalty only on the company. It was held that this required the attribution of the infringement to the company and its non-attribution to the defendants. On that ground, it was held that to apply the breach of duty exception so as to allow recovery of the penalty from the defendants would be inconsistent with the statutory scheme. The decision is not authority for any proposition applying more generally.”
“where the company pursues a claim against a director or employee for breach of duty, it would defeat the company’s claim and negate the director’s or employee’s duty to the company if the act or the state of mind of the latter were to be attributed to the company and the company were thereby to be estopped from founding on the wrong. It would also run counter to sections 171 to 177 of the 2006 Act, which sets out the director’s duties, for the act and state of mind of the defendant to be attributed to the company. This is so whether or not the company is insolvent. A company can be attributed with knowledge of a breach of duty when, acting within its powers and in accordance with section 239 of the 2006 Act, its members pass a resolution to ratify the conduct of the directors. But, as this court discussed in Prest v Prest[2013] 2 AC 415 , para 41, shareholders of a solvent company do not have a free hand to treat a company’s assets as their own. Further, as we have discussed, actual or impending insolvency will require the directors to consider the interests of the company’s creditors when exercising their powers. This might prevent them from seeking such ratification. Similarly, where a company ratifies a breach of duty by an agent or employee, it must be attributed with the relevant knowledge. But otherwise, as the courts have recognised since at least Gluckstein v Barnes[1900] AC 240 , it is absurd to attribute knowledge to the company and so defeat its claim.”
“59 I therefore agree with the Court of Appeal (at para 24) that: ‘Bilta confirms that a director sued by a company for loss caused by a breach of fiduciary duty cannot rely on the principles of attribution to defeat the claim even if the scheme involved the company in the fraud or illegality’.”
“It cannot be right that whenever a company has on its balance sheet a provision in respect of a long term liability which might turn out to be larger than the provision made, the creditors’ interests duty applies for the whole period during which there is a risk that there will be insufficient assets to meet that liability. That would result in directors having to take account of creditors’ rather than shareholders’ interests when running a business over an extended period. This would be a significant inroad into the normal application of directors’ duties. To hold that the creditors’ interests duty arises in a situation where the directors make proper provision for a liability in the company’s accounts but where there is a real risk that that provision will turn out to be inadequate would be a significant lowering of the threshold as currently described and applied in the cases to which I have referred. I can see no justification in principle for such a change.”
“As to the extent of the directors’ fiduciary duties (particularly as set out by section 172 CA 2006), the evidence points to (i) such duties extending so as to require that the directors consider the interest of creditors, and (ii) such a duty arising quite early on in the history of the Service and certainly from no later than: (a)14th December 2015 , when the Service was suspended with the First Respondent thereafter doing nothing to engage in an attempt to lift the suspension; or (b) at the latest, when PSA commenced its investigation and thereafter wrote to the Company on11th March 2016 requesting an urgent response. 84. I will leave my lawyers to argue this point. However, to my mind, it is clear that from an early stage the directors knew, or should have known at no later than the point the Service was suspended, that the Company was likely to face a substantial fine from PSA that it would have no way of paying.”
“where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be.”
“In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded as the company when questions of the duty of directors arise. If, as a general body, they authorise or ratify a particular action of the directors, there can be no challenge to the validity of what the directors have done. But where a company is insolvent the interests of the creditors intrude. They become prospectively entitled, through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the company’s assets. It is in a practical sense their assets and not the shareholders’ assets that, through the medium of the company, are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration.”
“142. As rightly submitted by Mr Curl however, the Duomatic principle will only come to the aid of persons seeking to uphold a transaction if, as a substitute for a resolution at a general meeting, the shareholders had actually applied their minds to the question whether to ratify the transaction: Re Duomatic[1969] 2 Ch. 365 at 373 B–C; In Re Queensway Systems Ltd[2006] EWHC 2496 (Ch) ; [2007] 2 B.C.L.C. 577 at [30]. Here, he argued, there was no evidence that the respondents had applied their minds to the question whether to ratify the transactions in question; quite the contrary.”
“Secondly, I do not accept that a shareholder’s mere internal decision can of itself constitute assent for Duomatic purposes. I was not referred to any authority in which it had been decided that a mere internal decision would suffice. Further, for a mere internal decision, unaccompanied by outward manifestation or acquiescence, to be enough would, as it seems to me, give rise to unacceptable uncertainty and, potentially, provide opportunities for abuse. A company may change hands or enter into an insolvency procedure; in either event, it is desirable that past decisions should be objectively verifiable. In my judgment, there must be material from which an observer could discern or (as in the case of acquiescence) infer assent. The law applies an objective test in other contexts: for example, when determining whether a contract has been formed. An objective approach must, I think, also have a role with the Duomatic principle.”
“What all the authorities show is that the appellant must establish an agreement by Lee to treat the meeting as valid and effective, notwithstanding the lack of the required period of notice. Lee’s agreement could be express or by implication, verbal or by conduct, given at the time or later, but nothing short of unqualified agreement, objectively established, will suffice. The need for an objective assessment was well put by Newey J in the recent case of Re Tulsesense Ltd, Rolfe v Rolfe[2010] EWHC 244 (Ch) ,[2010] 2 BCLC 525 at [41]”
“I will assume for present purposes that Mr Temmink is right that there is such a requirement, although we heard little argument on the question, and it is not necessary to decide the point. There is undoubtedly some authority in support of it: see Re New Cedos Engineering Co Ltd [1994] 1 B.C.L.C. 797 at 813e–g per Oliver J, where he said that he found it difficult to believe that Buckley J contemplated that the company could be bound by the ‘lonely soliloquies’ of a sole shareholder; and Rolfe v Rolfe[2010] EWHC 244 (Ch) at [41] per Newey J where he said that it was desirable that decisions of a company should be objectively verifiable. But in the present case the judge found that the transfer was ‘expressly authorised’ and carried out ‘at the direction of’ Mr V Sharma (Jmt at [63]: see [27] above). No attempt has been made to show that that was not a finding open to him on the evidence. We have not seen all the evidence, but there happens to be included in the material before us an email from Mr V Sharma to Mr Burton dated6 October 2012 which includes ‘Agreed you transfer the croydon properties to jvb7’ which certainly suggests not only that Mr Sharma knew about the proposed transfer but expressly assented to it, and not merely in his private thoughts.”
“In order to ascertain whether a breach has occurred, it is first necessary to determine the extent of the duty. That depends on ‘how the particular company’s business is organised and the part which the director could reasonably have been expected to play’ … In the event that concern arises as to the conduct of a director, therefore, it will be necessary to form a clear understanding of the factual context so as to be able to identify the extent of the duty owed by the director and the manner in which it was breached, in order both to formulate the claim properly and determine whether it can be substantiated…”
“Proper particulars need to be given of breach, setting out the respects in which it is said the defendant has fallen short of the standard to be expected of a reasonably competent professional in the relevant field of expertise. The onus of proving causation is on the claimant.”
“Without access to any Company books and records, then, with the exception of the payments from Imi/Tap2bill and the payments to the directors, it is difficult to say what the numerous payments into and out of the Company’s bank related to. It seems highly unlikely that more than a very few payments after the Service was suspended on14th December 2015 directly related to the Service. Accordingly, I must infer that the Company was engaging in some other business. Certainly some of the payments such as those listed immediately above from Crowtel Ltd duly paid on to ‘JC Consultancy’ do arouse some suspicion.”
“In the circumstances of this case, I am further satisfied that it was an abuse of process for the Liquidator to issue a claim in respect of unpaid PAYE and NIC for the year ended31 December 2011 . In this regard I remind myself that it is an abuse of process to issue a claim form in the absence of knowledge of any valid basis for a claim and any ability to formulate the claim at the time of issue: Nomura International Plc v Granada Group Ltd [2008] Bus. L.R. 1 (Cooke J). This is particularly so where, as in Nomura, a claim is issued to protect the claimant’s position on limitation. At the time of issuing these proceedings, shortly before the sixth anniversary of the Company entering into liquidation, no return or assessment in respect of the year ended31 December 2011 existed and there had been no intimation by HMRC, whether by proof or otherwise, of a claim in respect of that year, still less confirmation from HMRC as to how it would go about formulating any such claim. It was not for the Liquidator to second-guess how HMRC might proceed. That is not the proper basis for a claim.”
“32 In this case the Court of Appeal held that the conviction of the defendant in the magistrates’ court for careless driving was inadmissible in a subsequent action in which the plaintiff and his son (who had since died) claimed damages on the ground of the defendant’s negligent driving. The rule extends so as to render factual findings made by judges in civil cases inadmissible in subsequent proceedings (unless the party against whom the finding is sought to be deployed is bound by it by reason of an estoppel per rem judicatam). 33 This doctrine is not new. It is to be found in the Duchess of Kingston’s case (1776) 2 Sm LC, 13th ed (1929), p 644, 645 where Sir William de Grey, Lord Chief Justice of the Court of Common Pleas said: ‘What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding on a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court on facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded on particular reasons, but, not being applicable to the present subject, it is unnecessary to state them.’ 34 The rule also applies to the findings of facts of arbitrators: Land Securities plc v Westminster City Council[1993] 1WLR 286 ; of coroners or coroners’ juries: Bird v Keep[1918] 2 KB 692 ; of persons conducting a wreck inquiry: Waddle v Wallsend Shipping Co Ltd[1952] 2 Lloyd’s Rep 105 , where Devlin J suggested that the law should be changed; and The European Gateway[1987] QB 206 where Steyn J repeated the suggestion; and to the findings of individuals, of however great distinction, conducting extra statutory inquiries such as Lord Bingham’s report into the supervision of the Bank of Credit and Commerce International SA: Three Rivers District Council v Governor and Company of the Bank of England (No 3)[2003] 2 AC 1 . The judge treated the rule as applicable to judicial findings, being, for this purpose, ‘an opinion of a court or other tribunal whose responsibility it is to reach conclusions based solely on the evidence before it’: para 108. If that definition was intended to exclude a tribunal whose remit is to carry out its own investigation it is too narrow. … 36 In so far as the rule precludes reliance on criminal convictions in subsequent civil proceedings it has been abrogated by statute: theCivil Evidence Act 1968 . But it still applies in relation to findings of fact in civil proceedings: Land Securities plc v Westminster City Council[1993] 1WLR 286 , 288E—F, per Holmann J; Secretary of State for Business Enterprise and Regulatory Reform v Aaron [2009] Bus LR 809, paras 20—29, where Thomas LJ dealt with the rule and the exception to it in respect of Companies Act investigations where the investigators’ findings of fact are admissible in disqualification proceedings; Calyon v Michailaidis[2009] UKPC 34 .”
“[81] Turning to the first ground of appeal, the starting point is the scope of the rule in Hollington v Hewthorn. The relevant passage in the judgment of the Court of Appeal is that at pp 596-7 of the Law Report… It is quite clear from that passage that the appellants’ purported distinction between factual findings in a judgment which are not binding on a stranger to it and the legal effect of a judgment, which the appellants contend is binding on a stranger, is not a distinction recognised by the rule … the rule is not limited to findings of fact but extends to the legal consequences of those findings, as determined by a court in its judgment. … [86] That the rule in Hollington v Hewthorn is not limited to the inadmissibility of findings of fact in an earlier judgment against a stranger to it, but encompasses also the legal effect of that earlier judgment, is consistent with the wider principle of procedural fairness enunciated in Gleeson v Wippell … and applied by this Court in Powell v Wiltshire, that the suggestion that a stranger to an earlier judgment is bound by it is contrary to fundamental principles of natural justice. That wider principle is not limited to factual findings in the earlier judgment, but extends to the legal effect of the earlier judgment…”
“41 In so far as an expert gives evidence of fact (eg where he found the wreckage to be) his evidence is as admissible as that of any other person. Where his evidence is evidence of opinion it is admissible because it is the product of a special expertise which the trial judge is unlikely to possess and which, even if he did, it is not his function to apply.”
“caused or allowed the Company to fail to maintain any or any adequate Registered Office or otherwise ensure that correspondence was received and read”, while 85(i) is: “caused or allowed the Company to fail to maintain any or any adequate system whereby emails from PSA would be read and responded to”