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. A Pyrrhic Victory for Unjust Enrichment in Singapore?’(2023) 86 Modern Law Review 518-535 (with T Liau)

Rescuing Uncertain Leases in English Law: A Study in Compatibility for Transplantation: Berrisford v Mexfield Housing Co-Operative Ltd’ [2012] Singapore Journal of Legal Studies 481-490 (with K Low) Rachel joined the LSE Law School as Assistant Professor in Sep 2022. She is a private lawyer whose main research expertise and interests span three broad areas: the law of unjust enrichment and restitution, trusts and commercial equity, and agency law. She also has a special interest in corporate attribution in private law, the subject-matter of her doctorate and first monograph, Corporate Attribution in Private Law (Hart Publishing 2022). Her work has been cited with approval by the Supreme Court of the United Kingdom and the Singapore Court of Appeal. The general position is that knowledge and actions of a director will be attributed to the company, although questions of attribution are sensitive to the particular facts and this principle has been held not to apply in circumstances where what is in issue is the company’s knowledge of wrongdoing by a particular director. Where a company has been the victim of wrong-doing by its directors, or of which its directors had notice, then the wrong-doing, 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 on behalf of its creditors, for the loss suffered by the company as a result of the wrong-doing, 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.’

Comment

Proprietary Restitution’ in Elise Bant, Kit Barker, and Simone Degeling (eds), Unjust Enrichment and Restitution Handbook (Edward Elgar 2020) 476-97 (with T Liau). 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: However, the fact that a company is responsible to third parties for the actions of its directors, is not the same as the question of whether the knowledge or actions or a director should be attributed to the company – for example, vicarious liability does not involve the attribution of wrongdoing by a director (or employee) to the company, but rather imposes strict liability on the company for acts done in the course of employment. The legal personality of management corporations in strata title developments in Singapore’ [2012] Conveyancer and Property Lawyer 75-79

Looking at key questions of how companies are held accountable under private law, this book presents a succinct and accessible framework for analysing and answering corporate attribution problems in private law. A similar question came before the Supreme Court in the case of Jetivia v Bilta [2015] UKSC 23. However, unlike Stone & Rolls, which involved a claim by the company against a third party, in Bilta the defendants were the alleged wrongdoers themselves. Two Kinds of Agency’ (2019) 93 Supreme Court Law Review 385-411 (reprinted as ‘Two Kinds of Agency’ in Jason Neyers, Andrew Botterell, Zoe Sinel (eds), Gerald Fridman and the Law of Obligations: Past, Present and Future (LexisNexis Canada, 2019))

About the contributors

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. 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. 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.