It is a well established principle that a company has a separate legal personality from its members. In very limited circumstances, the English courts can 'pierce the corporate veil', putting to one side the company's separate legal personality and holding that its members are subject to the legal consequences of the company’s acts.
The English courts have only permitted the corporate veil to be pierced, or lifted, in a handful of cases in over a century, often where the company was used as a ‘puppet’ to disguise the fraudulent activities of the individual ‘puppeteers’ controlling it. This can be important because individual ‘puppeteers’ may have more funds to satisfy a judgment than the company, which is often insolvent by the time the fraud is uncovered. However, it was never precisely clear when the corporate veil may be pierced and what limitations there were on such an exercise. Recently, in a large fraud case, one English judge held that the corporate veil should be pierced and there was no reason why the ‘puppeteer’ should not be held to be a party to a contract entered into by the ‘puppet’ company he controlled. This was a controversial decision, as some commentators suggested that it extended the principle of piercing the corporate veil one step too far.
The Supreme Court has now considered this issue afresh and today handed down an important judgment on this issue. In the case of VTB Capital plc v Nutritek International Corporation & others  UKSC 5, the Supreme Court has unanimously held that it was against authority and principle to pierce the corporate veil in order to hold that those who misused the company (the ‘puppeteers’) were parties to the contracts entered into by that company (the ‘puppet’) when none of the parties intended that to be the case. The Court refused to rule on the argument that piercing the corporate veil could never be justified.
Although this decision firmly limits the effect of piercing the corporate veil, the principle itself remains intact. This is significant for any fraud case where corporate entities are being used as a device or facade to conceal the liability of controlling individuals; particularly so in a jurisdiction which does not recognise the concept of group corporate liability.
The Withers Civil Fraud Group is dealing with several large scale fraud cases that were on hold pending this decision and we are aware of several others in London. Potential claimants were waiting to see if they would be able to pierce the corporate veil of target companies and go after the individuals based on contractual claims. Following the judgment of the Supreme Court, those claims are now likely to come to life in any event.
The content of this article is intended to provide a general guide
to the subject matter. Specialist advice should be sought about your
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In the current economic climate, it is not uncommon for distressed businesses to be restructured through insolvency; the idea being to emerge in a leaner and more robust form albeit trading under a similar name.
The Fraud Act 2006, which represents the most radical change in the law of criminal fraud since the Theft Act 1968, came into force on January 15, 2007. We are now over a year into the new law, which seems a reasonable juncture to pose the question: has it had any impact?
The CPS was established in 1986 as the principal public prosecuting agency for conducting criminal prosecutions in England and Wales, merging the existing Home Office and Police based prosecuting authorities.
The Bribery Act 2010 has been in force for over four years. For much of that time, businesses have waited for clarification of the s7 offence of failure to prevent bribery. Finally, near the end of 2015, the first DPA was agreed. Now we have the first sentence from a Crown Court for the s7 offence
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).