Moore Stephens V Stone Rolls Ltd
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is a leading case relevant for
UK company law British company law regulates corporations formed under the Companies Act 2006. Also governed by the Insolvency Act 1986, the UK Corporate Governance Code, European Union Directive (European Union), Directives and court cases, the company is th ...
and the law on fraud and ''
ex turpi causa non oritur actio ' (Latin "action does not arise from a dishonourable cause") is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. The corresponding ''Ex turp ...
''. The
House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
decided by a majority of three to two that where the director and sole shareholder of a closely held private company deceived the auditors with fraud carried out on all creditors, subsequently the creditors of the insolvent company would be barred from suing the auditors for negligence from the shoes of the company. The Lords reasoned that where the company was only identifiable with one person, the fraud of that person would be attributable to the company, and the "company" (or the creditors standing in its insolvent shoes) could not rely on its own illegal fraud when bringing a claim for negligence against any auditors. It was the last case to be argued before the House of Lords. The decision was subject to much criticism, and was reviewed by the Supreme Court in ''
Jetivia SA v Bilta (UK) Limited (in liquidation) (sometimes referred to as ''Bilta (UK) Limited v Nazir'') is a UK company and insolvency law decision of the Supreme Court of the United Kingdom in relation to (i) the attribution of unlawful acts of a director to the company where the compan ...
''.


Facts

Stone & Rolls Ltd was wholly owned and directed by Mr Stojevic.
Moore Stephens Moore Global (officially Moore Global Network Limited) is a global accountancy, advisory and consulting network of independent firms with its headquarters in London. Moore Global is ranked by the International Accounting Bulletin (IAB) as the 11th ...
was the firm of chartered accountants hired to perform audits between 1996 and 1998. Mr Stojevic deceitfully siphoned assets of the company away and falsified accounts to show more profitable transactions than were real. In previous litigation, one of the main victims (a Czech bank,
Komerční banka Komerční banka (“KB”) is a major Czech bank and the parent company of KB Group, a member of the Société Générale international financial group. KB is a universal bank providing a wide range of services in retail, corporate and investme ...
) had successfully sued both the company and Mr Stojevic. The company went into liquidation. The company's creditors, acting in the name of the company, wished to sue the auditors for failing to detect the fraud, since both the company and Mr Stojevic were out of money. They claimed US$174m. The firm requested that the claim be struck out even before any question of their negligence was raised. They argued that even if they had been negligent it would be contrary to public policy to let the company sue them, because that would involve breach of the principle that a claimant cannot come to court and make a plea whilst relying on his own illegal behaviour (''
ex turpi causa non oritur actio ' (Latin "action does not arise from a dishonourable cause") is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. The corresponding ''Ex turp ...
'').


Judgment


High Court

At the
Commercial Court Business courts, sometimes referred to as commercial courts, are specialized courts for legal cases involving commercial law, internal business disputes, and other matters affecting businesses. In the US, they are trial courts that primarily or ...
, Langley J held Mr Stojevic's actions and state of mind were to be attributed to the company. Because they were the same thing, it was artificial to describe the company as a "victim" of the fraud, and therefore to let the company sue the auditor. However, because detecting the fraud was the very thing the auditors were engaged to do, they would not be allowed to rely on the ''ex turpi causa'' defence to a negligence claim.


Court of Appeal

At the
Court of Appeal of England and Wales The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to ...
, Mummery, Keene and Rimer LJJ reversed Langley J's decision in part, holding that: :* the illegality defence could not be removed simply because the very thing the auditors were meant to do was to detect fraud. :* the judge was otherwise correct in his conclusion on the issue of attribution. Rimer LJ, in his concurring opinion, summarized why Moore Stephens did not owe a duty of care in this case:


House of Lords

In a split 3 to 2 ruling, the House of Lords dismissed the appeal and held by a majority that the auditors, Moore Stephens, could not be sued by the company's creditors. Although each judge gave slightly different reasons, Lords Phillips,
Walker Walker or The Walker may refer to: People *Walker (given name) *Walker (surname) *Walker (Brazilian footballer) (born 1982), Brazilian footballer Places In the United States *Walker, Arizona, in Yavapai County *Walker, Mono County, California * ...
and
Brown Brown is a color. It can be considered a composite color, but it is mainly a darker shade of orange. In the CMYK color model used in printing and painting, brown is usually made by combining the colors Orange (colour), orange and black. In the ...
held the '' ex turpi causa'' defence barred the company's claim against the liquidator for negligence. Since Mr Stojevic was the exclusive owner and controller, it was logically necessary that his fraudulent intentions be attributed to the company. More specifically, Lord Phillips identified that the fraudulent act was done for the benefit of the company, and therefore the act of Mr Stojevic was attributed to be the act of Stone & Rolls through the organic process of attribution. The company was therefore deemed to be "aware" of the fraud and primarily liable for it. The auditors owed a duty to perform their audit diligently to the company (not to individual shareholders or creditors), and so if the company tried to bring a claim for breach of that duty it would necessarily be relying on its own illegality. Accordingly, the defence of ''
ex turpi causa non oritur actio ' (Latin "action does not arise from a dishonourable cause") is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. The corresponding ''Ex turp ...
'' should be open to the auditors. Both Lord Walker and Lord Brown rejected that there should exist any principle that the ''ex turpi causa'' defence would be overridden when the duty involved was to protect against one's own criminality. Lord Scott and
Lord Mance Jonathan Hugh Mance, Baron Mance, (born 6 June 1943) is a retired British judge who was formerly Deputy President of the Supreme Court of the United Kingdom. Early life Mance was born on 6 June 1943, (subscription required) one of four child ...
dissented. Commentators argue that the majority misapplied the facts and overlooked the relevance of insolvency to the application of attribution.


Significance

In the introduction to his speech, Lord Mance noted the effect of what have come to be called "rogue companies": The case was therefore seen to be a significant test of the extent of '' Caparo''. The majority of the Lords held that Moore Stephens' duty of care extended only to the shareholders, while the minority suggested it ought to be extended to creditors as well. Because the majority considered that the fact S&R was essentially a "one man company" was significant in arriving at their result, it is suggested that a different result could have occurred if innocent independent shareholders had also been involved. It is also suggested that this case also emphasises the need for the courts to ensure that the activities of the rogue do not warp the general principles of the law of professional liability. Commentators argue that ''Moore Stephens'' did not deliver a satisfactory result, because: :* the majority misapplied the facts by overlooking the relevance of insolvency to the application of attribution. :* the rules of attribution as laid down by
Lord Hoffmann Leonard Hubert "Lennie" Hoffmann, Baron Hoffmann (born 8 May 1934) is a senior South African–British judge. Currently, he serves as a Non-Permanent Judge of the Court of Final Appeal of Hong Kong; he formerly served as a Lord of Appeal in O ...
in '' Meridian Global Funds'' were misunderstood and misapplied. :* while the opinions of the minority risked creating a dangerous inroad into ''
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'' and ''Caparo'', the opinions of the majority avoided that risk but reached the right result by tortuous reasoning. However, the
Law Commission A law commission, law reform commission, or law revision commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal chang ...
recommended in its 2010 report on the illegality defence that no legislative change should be made in relation to claims for breach of contract, tort or unjust enrichment.
Lord Sumption Jonathan Philip Chadwick Sumption, Lord Sumption, (born 9 December 1948), is a British author, medieval historian, barrister and former senior judge who sat on the Supreme Court of the United Kingdom between 2012 and 2018, and a Non-Permanen ...
, who as barrister argued Moore Stephens' case before the Lords, since declared in a 2012 speech to the Chancery Bar Association that he believed the result was right, and stated the following principles that can be drawn from the jurisprudence surrounding the illegality defence: #It is not right to say that the rationale of the public policy varies according to the situation, and the statement of McLachlin J (as she then was) about it in '' Hall v. Hebert'' is right in principle. This was accepted by Lords Walker and Brown in ''Moore Stephens'', and was subsequently accepted in 2011 by the
High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
in ''Miller v Miller''. #The Claimant’s illegal act must be the basis of his claim. In that regard, the minority view in ''
Tinsley v Milligan is an English trusts law case, concerning resulting trusts, the presumption of advancement and illegality. The decision was criticised as "creating capricious results". It has now been overruled by . Facts Miss Tinsley sought possession of ...
'' is to be preferred. #There may be exceptional cases in which the principle of consistency positively requires that the illegality defence should fail, notwithstanding that the Claimant’s claim is founded on his own illegal act. That will happen if the purpose of the rule which the Claimant’s illegal act violated would be defeated by preventing him from suing on it. #The only way in which the complexity, capriciousness and injustice of the current English law can be addressed is by making the consequences of a finding that a claim is founded on the Claimant’s illegal act subject to a large element of judicial discretion. The courts have subsequently held that: * if an undertaking is penalised by the
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for infringing competition law, the company cannot recover money for penalties from its directors or employees, as that is contrary to ''ex turpi causa non oritur actio''. * ''Moore Stephens'' is not applicable to cases in which the claim is based on a breach of duty the scope of which encompasses persons or interests other than the fraudsters in corporate form., upheld in (affirmed in )


See also

* * * ''
Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd ''Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd'' 983Ch 258 is a leading United Kingdom company law case relating to directors' liability. The case is the principal authority for the proposition that ...
''
983 Year 983 ( CMLXXXIII) was a common year starting on Monday of the Julian calendar. Events By place Europe * Summer – Diet of Verona: Emperor Otto II (the Red) declares war against the Byzantine Empire and the Emirate of Sicily ...
Ch 258


Notes


References

* *


External links

*
Moore Stephens' website
{{DEFAULTSORT:Moore Stephens V Stone Rolls Ltd United Kingdom company case law House of Lords cases 2009 in United Kingdom case law