We had previously discussed the
judgment of the Court of Appeal in VTB v. Nutritek. The United
Kingdom Supreme Court has dismissed the appeal against this decision.
judgment of the Court of Appeal in VTB v. Nutritek. The United
Kingdom Supreme Court has dismissed the appeal against this decision.
While we will discuss the case in
more detail in the coming days, one specific point is noteworthy. In dismissing
the appeal, the Court has left open (at least as far as the Supreme Court is
concerned) an extremely important question of principle: does a Court at all have
the power under English law to pierce the corporate veil in the absence of any
statutory indication? It has long been assumed as almost axiomatic that Court
do have such a power – the Court of Appeal in VTB decided the question
principally on the ground of what the consequence of lifting the veil would be.
This is also the basis on which the Supreme Court decides the case; however,
what the Court left open is perhaps as important as what it decided. Lord
Neuberger, giving the leading judgment on the point, notes:
more detail in the coming days, one specific point is noteworthy. In dismissing
the appeal, the Court has left open (at least as far as the Supreme Court is
concerned) an extremely important question of principle: does a Court at all have
the power under English law to pierce the corporate veil in the absence of any
statutory indication? It has long been assumed as almost axiomatic that Court
do have such a power – the Court of Appeal in VTB decided the question
principally on the ground of what the consequence of lifting the veil would be.
This is also the basis on which the Supreme Court decides the case; however,
what the Court left open is perhaps as important as what it decided. Lord
Neuberger, giving the leading judgment on the point, notes:
“125. Mr Lazarus argued that
in all, or at least almost all, the
cases where the principle was actually applied, it was either common ground that the principle existed
(Gilford Motor Co Ltd v Horne [1933] Ch 935, Re H (restraint order: realisable property)
[1996] 2 BCLC 500, and Trustor) and/or the result achieved by piercing the veil
of incorporation could have been
achieved by a less controversial route – for instance, through the law of
agency (In re Darby, Ex p Brougham [1911] 1 KB 95, Gilford, and
Jones v Lipman [1962] 1 WLR 832), through statutory interpretation
(Daimler Company Ltd v Continental Tyre and Rubber Company (Great Britain) Ltd
[1916] 2 AC 307, Merchandise Transport Ltd v British Transport Commission
[1962] 2 QB 173, Wood Preservation Ltd v Prior [1969] 1 WLR 1077, and Re A
Company [1985] BCLC 333), or on the basis that, as stated by Lord Goff in Goss
v Chilcott [1996] AC 788, 798, money due to an individual which he directs to
his company is treated as received by
him (Gencor ACP Ltd v Dalby [2000] 2 BCLC 734, and Trustor).
in all, or at least almost all, the
cases where the principle was actually applied, it was either common ground that the principle existed
(Gilford Motor Co Ltd v Horne [1933] Ch 935, Re H (restraint order: realisable property)
[1996] 2 BCLC 500, and Trustor) and/or the result achieved by piercing the veil
of incorporation could have been
achieved by a less controversial route – for instance, through the law of
agency (In re Darby, Ex p Brougham [1911] 1 KB 95, Gilford, and
Jones v Lipman [1962] 1 WLR 832), through statutory interpretation
(Daimler Company Ltd v Continental Tyre and Rubber Company (Great Britain) Ltd
[1916] 2 AC 307, Merchandise Transport Ltd v British Transport Commission
[1962] 2 QB 173, Wood Preservation Ltd v Prior [1969] 1 WLR 1077, and Re A
Company [1985] BCLC 333), or on the basis that, as stated by Lord Goff in Goss
v Chilcott [1996] AC 788, 798, money due to an individual which he directs to
his company is treated as received by
him (Gencor ACP Ltd v Dalby [2000] 2 BCLC 734, and Trustor).
126. In summary, therefore, the
case for Mr Malofeev is that piercing
the corporate veil is contrary to high authority, inconsistent with principle,
and unnecessary to achieve justice.
case for Mr Malofeev is that piercing
the corporate veil is contrary to high authority, inconsistent with principle,
and unnecessary to achieve justice.
127. I see the force of this
argument, but there are points the other way. I am not convinced that all the
cases where the court has pierced the veil can be explained on the basis
advanced by Mr Lazarus. Further, as Mr Howard QC said, the fact is that those
cases were decided on the basis of piercing the veil. More generally, it may
be right for the law to permit the veil to be pierced in certain circumstances
in order to defeat injustice. In addition, there are other cases, notably Adams
v Cape Industries plc [1990] Ch 433, where the principle was held to exist
(albeit that they include obiter observations and are anyway not binding in
this court). It is also difficult to explain the first instance decision in
Kensington International Ltd v Republic of the Congo [2005] EWHC 2684 (Comm),
[2006] 2 BCLC 296 on any basis other than the principle (but I am not at all
sure that the case was rightly decided …). Further, the existence of the principle
is accepted by all the leading textbooks…
argument, but there are points the other way. I am not convinced that all the
cases where the court has pierced the veil can be explained on the basis
advanced by Mr Lazarus. Further, as Mr Howard QC said, the fact is that those
cases were decided on the basis of piercing the veil. More generally, it may
be right for the law to permit the veil to be pierced in certain circumstances
in order to defeat injustice. In addition, there are other cases, notably Adams
v Cape Industries plc [1990] Ch 433, where the principle was held to exist
(albeit that they include obiter observations and are anyway not binding in
this court). It is also difficult to explain the first instance decision in
Kensington International Ltd v Republic of the Congo [2005] EWHC 2684 (Comm),
[2006] 2 BCLC 296 on any basis other than the principle (but I am not at all
sure that the case was rightly decided …). Further, the existence of the principle
is accepted by all the leading textbooks…
130. In my view, it is
unnecessary and inappropriate to resolve the issue of whether we should
decide that, unless any statute relied on in the particular case expressly or
impliedly provides otherwise, the court cannot pierce the veil of incorporation.
It is unnecessary, because the second argument raised on behalf of Mr Malofeev,
to which I shall shortly turn, persuades me that VTB cannot succeed on this
issue. It is inappropriate because this is an
interlocutory appeal, and it Page
41 would therefore be wrong (absent special circumstances) to decide an issue
of such general importance if it is unnecessary to do so…”
unnecessary and inappropriate to resolve the issue of whether we should
decide that, unless any statute relied on in the particular case expressly or
impliedly provides otherwise, the court cannot pierce the veil of incorporation.
It is unnecessary, because the second argument raised on behalf of Mr Malofeev,
to which I shall shortly turn, persuades me that VTB cannot succeed on this
issue. It is inappropriate because this is an
interlocutory appeal, and it Page
41 would therefore be wrong (absent special circumstances) to decide an issue
of such general importance if it is unnecessary to do so…”
In subsequent posts on this blog,
we will discuss the judgment, and also the highly interesting argument
mentioned above, in further detail.
we will discuss the judgment, and also the highly interesting argument
mentioned above, in further detail.
