The Supreme Court dismissed the appellants’ appeal and upheld the Court of Appeal’s decision, holding that the directors’ knowledge could not be attributed to the company – the issue of attribution as between a company and its directors/employees is not the same as between the company and a third party. Lord Neuberger summarised the position as follows: A Principal’s Mental Incapacity and ‘Termination’ of the Agent’s Authority’ (2024) LQR (forthcoming)

Proprietary Restitution’ in Elise Bant, Kit Barker, and Simone Degeling (eds), Unjust Enrichment and Restitution Handbook (Edward Elgar 2020) 476-97 (with T Liau).Resulting Trusts: A Victory for Unjust Enrichment?’ (2014) 73(3) Cambridge Law Journal 500-3 (with T Liau). For example, what is the position where the claim is brought on behalf of the company itself, for example by a liquidator, for losses caused to the company as a result of the (former) employee or officer’s conduct? Should the knowledge or conduct of the director/employee be attributed to the company, thereby providing the director or employee with a defence to the company’s claim on the grounds of ex turpi causa– in other words that the company should be precluded from claiming as a result of its own illegality? Donatio mortis causa of registered land in the Singapore High Court’ [2011] Trust Law International 145-149 There are many circumstances in which the court must determine whether the knowledge or actions of an officer should be attributed to the company and the question has arisen in several recent cases.

Four Misconceptions about Charity Law in Singapore” [2012] Singapore Journal of Legal Studies 37-54 A Pyrrhic Victory for Unjust Enrichment in Singapore?’(2023) 86 Modern Law Review 518-535 (with T Liau)

This issue had previously been looked at by the House of Lords in Stone & Rolls v Moore Stephens [2009] 1 AC 1391. That case concerned a claim by a company in liquidation against its auditors. The claim was for alleged negligence on the basis that the auditors had failed to detect and prevent wrongdoing by the company’s sole director, as a result of which, the company became liable to various defrauded banks. The majority of the House of Lords held that the claim failed on the basis that the fraud in that case should be attributed to the company. However, the reasoning behind this decision and the question of what principles may be derived from it has given rise to much debate. As a matter of English law, it is generally the case that a company will be responsible for the actions of its directors and, in many cases, its employees. In contract, this manifests itself through the rules of agency; in tort, through the doctrine of vicarious liability.

Corporate attribution is the process by which the acts and states of mind of human individuals are treated as those of a company to establish the company's rights, duties, and liabilities. But when and why are acts and states of mind attributed in private law? The Court of Appeal decided that the knowledge of directors in such circumstances should not be attributed to the company. It is notable that the Court of Appeal’s view was that such conclusion should apply irrespective of whether or not there was a ‘sole actor’ in control of the company and indeed earlier authorities had moved away from the position where the concept of ‘the directing mind and will’ was of principal significance in determining a question of attribution. Further, the Court of Appeal considered that the question of ex turpi causa was irrelevant to the present case. The Supreme Court also confirmed that s.213 of the Insolvency Act 1986 (which allows liquidators to seek a contribution from any person who was knowingly party to fraudulent trading by the company) has extra-territorial effect as had been previously assumed. In other words, claims can be brought against any person, wherever they are in the world.

Jetivia v Bilta

Drawing on a wide range of material from across the disparate areas of company law, agency law, and the laws of contract, tort, unjust enrichment, and equitable obligations, this book's central argument is that attribution turns on the allocation and delegation of the company's own powers to act. This approach allows for a much greater and clearer understanding of attribution. A further benefit is that it shows attribution to be much more united and coherent than it is commonly thought to be. Looking at corporate attribution across the broad expanse of the common law, this book will be of interest to lawyers across the common law world, including the United Kingdom, Australia, Canada, and Singapore.

Much of Rachel’s research is united by a central question: why, how, and when do people act for or on behalf of another in private law? In that vein, she is currently working on projects concerning the equitable doctrine of ‘fraud on a power’, powers of attorney, and termination of authority. Birksian Themes and their Impact in England and Singapore: Three Points of Divergence’ [2021] Lloyd’s Maritime and Commercial Law Quarterly 350-379 (with T Liau).We look at the recent Supreme Court decision in Jetivia v Bilta [2015] UKSC 23 in relation to the question of in what circumstances will the knowledge of a director or officer of a company be attributed to the company itself. Review of Andreas Televantos, Capitalism Before Corporations: The Morality of Business Associations and the Roots of Commercial Equity and Law (OUP 2020) (2022) 81 CLJ 202 Ministerial Acts’ in Paul Davies and Cheng-Han Tan (ed), Intermediaries in Commercial Law (Hart Publishing, 2022) The decision by the Supreme Court in relation to the appeal was unanimous and there appears to have been general agreement as to the above proposition, although there were four different judgments produced by the panel of seven Justices, each containing differing analysis and reasoning. For example, the majority considered that the purpose and scope of the defence of illegality should be left for another occasion, whereas Lords Toulson and Hodge (jointly) and Lord Sumption each give detailed and differing analyses of illegality. Lords Toulson and Hodge and Lord Sumption also differed as to the principles to be derived from the decision in Stone & Rolls. For his part, Lord Neuberger (with whom Lords Clarke and Carnwarth agreed), took the view that Stone & Rolls should no longer be treated as being of assistance and is to be confined to its own facts.