Jurisdiction(s):
United Kingdom

Haysport v Ackerman: no dishonesty needed for LA 1980 s 21(1)(b); s 32 concealment via continuing non-disclosure by sole director (England and Wales)

Published on: 10 March 2016

Published by a LexisNexis Dispute Resolution expert

Legal News

Article summary

Practical implications

This ruling is notable for its observations on the need for dishonesty under LA 1980, s 21(1). It is settled that dishonesty is required for LA 1980, s 21(1)(a)—no limitation where a trustee commits a fraudulent breach of trust. Yet, although the court appeared to imply that dishonesty is also demanded for LA 1980, s 21(1)(b)—no limitation on recovering trust property from a trustee who holds it or has converted it to his own use—Smith J nevertheless concluded that LA 1980, s 21(1)(b) was satisfied, notwithstanding the absence of dishonesty on the evidence. The decision likewise indicates that, where there is a single active director who has committed undisclosed breaches of fiduciary duty, they owe a continuing obligation to disclose those breaches while they remain a director; and whilst the non-disclosure persists, those breaches are likely to be regarded as concealed by the director for limitation purposes under LA 1980, s 32. Accordingly, dishonesty is indispensable for paragraph (a), but not a prerequisite for paragraph (b) on these facts.

Facts

The claimant companies brought proceedings against the defendant, a former director, for breach of fiduciary duty, on the basis that the defendant had breached fiduciary duties as director...

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Popular documents

Using the Judicial College Guidelines to assess general damages in personal injury claims

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

Tomlin orders in England and Wales: CPR guidance on drafting, confidentiality, approval, variation, enforcement, limitation, CCA issues, court-specific requirements, sample wording and precedents

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

Precedent: Deed of Surrender of Lease with Optional Premium, Settlement and Release, Landlord, Mortgagee and Guarantor Consents, Reimbursement and HM Land Registry Provisions (England and Wales)

Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...

Precedent Statutory Declaration: Standard Wording under the Statutory Declarations Act 1835

I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...