On attraction from: [2021] EWCA Civ 535
The Appellant (“SIB”) is an organization integrated in Antigua and Barbuda that went into liquidation in 2009. Most of SIB’s enterprise was promoting funding merchandise to worldwide prospects. Nonetheless, throughout 2003 to 2009, SIB was being run as a big Ponzi scheme. Buyer withdrawals and funds when funding merchandise supposedly matured had been being comprised of capital invested by different prospects reasonably than funding proceeds. In 2008, many purchasers requested withdrawals from SIB fearing that it could turn out to be bancrupt.
SIB had 4 financial institution accounts with the Respondent (“HSBC”). These accounts had been frozen by HSBC on 17 February 2009 following SIB’s proprietor, Mr Robert Stanford, being charged by the US Securities and Alternate Fee. Previous to the accounts being frozen, from August 2008, Mr Stanford purportedly licensed numerous funds from the accounts. This attraction issues funds from the accounts totaling £116 million which had been used to pay SIB’s prospects, some immediately and a few after cash was transferred by HSBC to SIB’s account with a special financial institution in Toronto (the “disputed funds”).
SIB’s declare is that HSBC was on discover that the directions to make the disputed funds could have been a part of a fraud. Accordingly, it’s alleged that HSBC was beneath an obligation of care, referred to as the Quincecare obligation, to refuse to simply accept Mr Stanford’s directions to pay out cash from the accounts (the “Quincecare declare”). HSBC’s utility for abstract judgment to strike out SIB’s Quincecare declare was refused by the Excessive Court docket. Nonetheless, on attraction HSBC was profitable.
This attraction is worried solely with the next query: even when HSBC did owe SIB the Quincecare obligation and was in breach of this obligation, did the breach give rise to any recoverable loss by SIB?
HELD – Attraction dismissed by a majority. Girl Rose gave the lead judgment, with which Lord Hodge and Lord Kitchin agreed. Lord Leggatt, in settlement with Girl Rose, gave a concurring judgment. Lord Gross sales gave a dissenting judgment.
The Supreme Court docket distinguished between two units of SIB’s prospects. First, prospects who escaped with out loss as a result of they withdrew their funds (as they had been contractually entitled to do) earlier than the SIB scheme collapsed and so had been paid from the disputed funds (known as the “early prospects”). Second, prospects who danger dropping nearly all their cash as a result of they didn’t withdraw their funds earlier than the collapse (known as the “late prospects”).
The bulk held that the disputed funds which relieved SIB of its legal responsibility to its early prospects don’t quantity to a financial loss. Within the hypothetical state of affairs the place HSBC had complied with its Quincecare obligation, SIB may need had an additional £116 million on liquidation. Nonetheless, it additionally wouldn’t have disbursed any of the money owed it owed to the early prospects so they might additionally declare a dividend within the insolvency alongside the late prospects. As there could be an additional £116 million for the liquidators to distribute, all the shoppers would get, say, 12pence within the pound reasonably than the early prospects getting 100pence and the late prospects solely fivepence. However exactly the identical quantity of SIB’s debt could be extinguished when the corporate was dissolved in each the hypothetical and real-world state of affairs. There may be subsequently no recoverable loss.
Addressing a sub-issue, the bulk held that the place a director, in breach of their fiduciary duties to an organization, causes an bancrupt firm to repay sure firm money owed, there could also be circumstances the place the director may be required to repay the bancrupt firm in respect of the funds. Nonetheless, this fiduciary legal responsibility doesn’t imply there’s a extra normal precept that an individual who’s negligent may be liable the place the negligence leads to no financial loss.
Lord Leggatt agreed with Girl Rose that SIB has not suffered loss due to the disputed funds. He holds that the basic precept of separate company character means the pursuits of an organization are in regulation distinct from these of the individuals who’ve financial pursuits within the firm. Thus, the losses suffered by an organization aren’t the identical as losses suffered by its collectors. Whereas there could also be a correlation between these totally different losses, so as to hold the regulation coherent, the excellence between them shouldn’t be blurred. Lord Leggatt additionally agreed with the bulk with regard to the sub-issue on the legal responsibility of administrators.
Lord Gross sales dissented. In his view SIB has suffered a loss. On the related occasions SIB was hopelessly bancrupt. Subsequently, SIB couldn’t legally have paid the early prospects the face worth of the money owed and, if it had not been deceived by Mr Stanford, it will not have chosen to take action; as an alternative, it will have retained its cash to spend on different, lawful functions. Fee of greater than was essential to the early prospects depleted SIB’s belongings which constitutes a loss to SIB. It isn’t right to deal with the corporate as a pure abstraction. When SIB paid its early prospects, its company character in regulation was a car to guard normal collectors as a complete. The funds used to make the disputed funds is not going to be used to pay the final collectors as a complete, as they need to have been. This diversion of funds is a loss to SIB. In relation to the sub-issue, Lord Gross sales held that his view gives a transparent rationalization as to a director’s legal responsibility on this context. In regulation, the pursuits of an organization which is hopelessly bancrupt are totally aligned with these of its collectors as a normal physique. If an organization’s cash, beneath the management of the administrators, is paid out to discharge the money owed of some collectors out of the final physique of collectors, the pursuits of the collectors as a normal physique, and therefore the pursuits of the corporate, are prejudiced and this can provide rise to recoverable losses.
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