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.
On October 28, 2014, the UK’s Serious Fraud Office ("SFO") announced that it has issued criminal proceedings against Noel Cryan, a former employee at Tullett Prebon Group Ltd, for the manipulation of LIBOR, which brings the number of individuals facing charges brought by the SFO for LIBOR manipulation to thirteen.
A discussion which highlights recent suggestions of a possible review of the UK Bribery Act 2010, outline the way in which Deferred Prosecution Agreements are expected to work in the UK when they are implemented in February 2014 and summarise the proposed new sentencing guidelines for financial crimes published by the Sentencing Council for England and Wales in June 2013.
The director of the SFO, David Green CB QC, was quoted as saying that he is "against businesses commissioning their own reports into allegations of serious misbehaviour".
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”