Jetivia SA & Anor v Bilta (UK) Ltd & Ors

Jetivia SA & Anor v Bilta (UK) Ltd & Ors

The Court of Appeal held that Bilta's claims against its directors and accessories for conspiracy, dishonest assistance, and fraudulent trading are not barred by ex turpi causa non oritur actio, even if the company is a one-man company. The law does not attribute the directors' fraud to the company when it is the victim of the breach of duty. The 'sole actor' exception does not apply to bar such claims. Section 213 of the Insolvency Act 1986 applies to any person, including foreign defendants, and has extra-territorial effect. The appeal was dismissed.

Parties
Appellant/6th Defendant: Jetivia S.A.; Appellant/7th Defendant: Urs Brunschweiler; Respondent/1st Claimant: Bilta (UK) Limited (in liquidation); Respondent/2nd Claimant: Kevin John Hellard (liquidator of Bilta (UK) Ltd); Respondent/3rd Claimant: David Anthony Ingram (liquidator of Bilta (UK) Ltd)
Jurisdiction
England and Wales
Judgment Date
31 July 2013
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) on Summary Dismissal/strike Out Applications
Outcome
Appeal dismissed
Legal Topics
Attribution of Directors' Acts, Ex Turpi Causa Non Oritur Actio, Fraudulent Trading, Dishonest Assistance, Conspiracy, Jurisdiction of Insolvency Act S.213
Company Law Insolvency Law Equity and Trusts Attribution of Directors' Acts Ex Turpi Causa Non Oritur Actio Fraudulent Trading Dishonest Assistance Conspiracy +1 more

Case Brief

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Parties

Jetivia S.A.

Appellant/6th Defendant

Urs Brunschweiler

Appellant/7th Defendant

Bilta (UK) Limited (in liquidation)

Respondent/1st Claimant

Kevin John Hellard (liquidator of Bilta (UK) Ltd)

Respondent/2nd Claimant

David Anthony Ingram (liquidator of Bilta (UK) Ltd)

Respondent/3rd Claimant

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) on Summary Dismissal/strike Out Applications

Legal Issues

  1. 1 Whether Bilta's claims are barred by ex turpi causa non oritur actio due to attribution of directors' fraud to the company
  2. 2 Whether the 'sole actor' exception prevents Bilta from suing its directors and accessories for breach of duty
  3. 3 Whether s.213 Insolvency Act 1986 applies to foreign defendants with no presence in England

Ratio Decidendi

The Court of Appeal held that Bilta's claims against its directors and accessories for conspiracy, dishonest assistance, and fraudulent trading are not barred by ex turpi causa non oritur actio, even if the company is a one-man company. The law does not attribute the directors' fraud to the company when it is the victim of the breach of duty. The 'sole actor' exception does not apply to bar such claims. Section 213 of the Insolvency Act 1986 applies to any person, including foreign defendants, and has extra-territorial effect. The appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal against the Chancellor’s refusal to dismiss or strike out Bilta’s claims is dismissed.
  • Section 213 Insolvency Act 1986 applies to the appellants.