Minority protection doctrines: from equity and company law to strata title” [2011] Conveyancer and Property Lawyer 96-114 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. 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 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. 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) 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. 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?

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. 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. Resulting Trusts: A Victory for Unjust Enrichment?’ (2014) 73(3) Cambridge Law Journal 500-3 (with T Liau).

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. Over the Horizon: Where Agency, Equity and Collective Sales Meet’ (2010) 28 Singapore Law Review 39-53 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.

Reviews

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 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. Unjust Enrichment and Restitution in Singapore: Where Now and Where Next?’ [2013] Singapore Journal of Legal Studies 331-60 (with T Liau)

Proprietary Restitution’ in Elise Bant, Kit Barker, and Simone Degeling (eds), Unjust Enrichment and Restitution Handbook (Edward Elgar 2020) 476-97 (with T Liau). Ministerial Acts’ in Paul Davies and Cheng-Han Tan (ed), Intermediaries in Commercial Law (Hart Publishing, 2022) Meridian, Allocated Powers and Systems Intentionality Compared’ in Elise Bant (ed), The Culpable Corporate Mind (Hart Publishing 2023), Chapter 6 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. A claim was brought by liquidators against (amongst others) directors of the insolvent company alleging a conspiracy to defraud the company. The allegation was that there had been a carousel fraud relating to European Emissions Trading Scheme Allowances. The defendants applied to strike out the claim on the ground of ex turpi causa and in particular, it was argued that the knowledge of the directors should be attributed to the company.A Principal’s Mental Incapacity and ‘Termination’ of the Agent’s Authority’ (2024) LQR (forthcoming) 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 Pyrrhic Victory for Unjust Enrichment in Singapore?’(2023) 86 Modern Law Review 518-535 (with T Liau)

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. 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.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)) The legal personality of management corporations in strata title developments in Singapore’ [2012] Conveyancer and Property Lawyer 75-79 Meridian, Allocated Powers, and Systems Intentionality Compared’ in Elise Bant (ed), Culpable Corporate Minds (Hart Publishing, forthcoming Sept 2023) 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? Four Misconceptions about Charity Law in Singapore” [2012] Singapore Journal of Legal Studies 37-54