Instant Access Properties Ltd v Rosser & Ors [2018] EWHC 756 (Ch) (13 April 2018)

Instant Access Properties Ltd v Rosser & Ors [2018] EWHC 756 (Ch) (13 April 2018)

The court found that Mr Moore and Mr Rosser were not de facto or shadow directors of IAP during the relevant period and did not owe fiduciary duties as alleged. The arrangements between IAP, Leadenhall, and Darrencrest were not fraudulent or a sham, but legitimate tax planning. There was no breach of fiduciary duty by the directors or dishonest assistance or conspiracy by the professional advisers. The claims for breach of duty, dishonest assistance, and conspiracy failed on the facts and, in any event, were time-barred. The section 213 Insolvency Act 1986 claim also failed as there was no fraudulent trading.

Citation
[2018] EWHC 756 (Ch)
Parties
Claimant: Instant Access Properties Limited (In Liquidation); Applicants: Kevin Anthony Murphy and Richard Howard Toone (as Joint Liquidators of Instant Access Properties Limited); First Defendant/respondent: Mr Bradley John Rosser; Second Defendant/respondent: Mrs Maria Helena Gifford; Third Defendant/respondent: Mr James Bernard Moore (A Bankrupt); Fourth Defendant/respondent: Jeffcote Donnison LLP; Fifth Defendant/respondent: Mr Phillip Donnison; Sixth Defendant/respondent: Mishcon de Reya (A Firm); Seventh Defendant/respondent: Mr Jonathan Berman
Jurisdiction
England and Wales
Judgment Date
13 April 2018
Procedural Posture
High Court Chancery Division Commercial Claim and Insolvency Application / Judgment After Trial
Outcome
Claims dismissed
Legal Topics
Directors' Fiduciary Duties, De Facto and Shadow Directors, Fraudulent Trading, Dishonest Assistance, Conspiracy to Injure by Unlawful Means, Limitation of Actions, Account of Profits, Tax Avoidance
Company Law Insolvency Law Equity and Trusts Professional Negligence Directors' Fiduciary Duties De Facto and Shadow Directors Fraudulent Trading Dishonest Assistance +4 more

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Parties

Instant Access Properties Limited (In Liquidation)

Claimant

Kevin Anthony Murphy and Richard Howard Toone (as Joint Liquidators of Instant Access Properties Limited)

Applicants

Mr Bradley John Rosser

First Defendant/respondent

Mrs Maria Helena Gifford

Second Defendant/respondent

Mr James Bernard Moore (A Bankrupt)

Third Defendant/respondent

Jeffcote Donnison LLP

Fourth Defendant/respondent

Mr Phillip Donnison

Fifth Defendant/respondent

Mishcon de Reya (A Firm)

Sixth Defendant/respondent

Mr Jonathan Berman

Seventh Defendant/respondent

Procedural Posture

High Court Chancery Division Commercial Claim and Insolvency Application / Judgment After Trial

Legal Issues

  1. 1 Whether Mr Moore and Mr Rosser were de facto or shadow directors of IAP and owed fiduciary duties
  2. 2 Whether directors and others breached fiduciary duties by diverting assets/commissions to Leadenhall and Darrencrest
  3. 3 Whether professional advisers dishonestly assisted breaches of duty or conspired to injure IAP

Ratio Decidendi

The court found that Mr Moore and Mr Rosser were not de facto or shadow directors of IAP during the relevant period and did not owe fiduciary duties as alleged. The arrangements between IAP, Leadenhall, and Darrencrest were not fraudulent or a sham, but legitimate tax planning. There was no breach of fiduciary duty by the directors or dishonest assistance or conspiracy by the professional advisers. The claims for breach of duty, dishonest assistance, and conspiracy failed on the facts and, in any event, were time-barred. The section 213 Insolvency Act 1986 claim also failed as there was no fraudulent trading.

Court Disposition

Claims dismissed

Orders

  • All claims by the liquidators and IAP against the Defendants are dismissed.
  • No order for an account of profits or contribution under section 213 Insolvency Act 1986.