prest v petrodel essay
4 comments. The decision shows that an application of company law principles is required when determining the ownership of those assets. If you need assistance with writing your essay, our professional essay writing service is here to help! She asked the court to lift the corporate veil and treat her ex-husband and the companies as being effectively the same. Notwithstanding, since Prest, it is no longer sufficient for a company to show that it is ‘a mere façade or a sham’;[18] one must show that control of the company by the wrongdoer was used as a device to conceal the wrongdoing. One of the main grounds relied upon by the trustees in the application was the “evasion principle”, (so named by Lord Sumption in his leading judgment in Prest v Petrodel Resources Limited and others [2013] UKSC), pursuant to which the Court can depart from the fundamental principle that a company has a separate legal personality from that of its members. For the past 30 years orders have been made against the assets of a company that are considered to be the alter ego of a spouse to satisfy a capital award made by the court in respect of the other spouse.1In 2012 the Court of Appeals ruling in Petrodel Resources Ltd & Ors v Prest & Ors2set a new precedent stopping an ex-wife being able to investigate a company’s assets when she believes her husband has concealed assets within that company. It can be contended that, even if the doctrine is given is quietus, judges would still apply the principles of piercing the veil unknowingly. It can be indicated that if Prest was successful in providing a set answer as to what piercing the corporate veil entails then there would have been many cases which would have pierced the veil post Prest. Published: 22nd Dec 2020 in This article will critically evaluate the significance of the Prest v Petrodel Resources Ltd[1] decision in light of the corporate veil doctrine. Introduction TO Incorporation MAN201 Student Self Test SAQs ECON254 Tutorial 1 Questions Cases on directors duties Company chp - … [49] If one keeps on rebutting every proposal that is brought forward then that is not progressive, it does not feel like any decision makers has tried to find a solution for this problem. 42 L Stockin ‘Piercing the corporate veil: reconciling R. v Sale, Prest v Petrodel Resources Ltd and VTB Capital Plc v Nutritek International Corp’ (2014) 35(12) Company Lawyer 365. It can be indicated that if Prest was successful in providing a set answer as to what piercing the corporate veil entails then there would have been many cases which would have pierced the veil post Prest. In Petrodel, Mr Prest was found to have procured the transfer of various residential properties to companies which he owned and controlled and in so doing, had received no consideration from the companies. Piercing the Corporate Veil: Prest v Petrodel Resources Ltd; Share. Additionally, Lord Sumption’s principle brought further opposition. [50] However, Prest does confirm that the veil would only be pierced in exceptional circumstances. [32] Henceforth, this shows that Prest only narrowed only one specific factor in piercing the corporate veil, a factor which cannot be used in all cases. Get in touch with our dedicated team to discuss about your requirements in detail. [26] Most significantly, Neuberger also found that in cases where piercing the veil was considered, it either did not apply in the facts, or it was applied on the facts but the results could have been arrived at on some other legal basis. [48] However, it can be contemplated that slightly narrowing a doctrine which Supreme Court judges do not agree with does not mean that it is progressive. We are here to help you our best in any way. We Will Write a Custom Essay Specifically For You For Only $13.90/page! [21] The concealment principles is "the interposition of a company or perhaps several companies so as to conceal the real actors"[22] But, he noted that this does not actually involve piercing the veil; the court is simply looking behind the façade to discover the true facts. In Prest, Lord Sumption argued for a narrower and clearer approach by restricting the circumstances in which the veil may be pierced. 45 VTB Capital plc v Nutritek International Corporation 2013 UKSC 5 (SC). Company. It seems that we are at a halt with the long marathon until, a case can fully apply the two provisions in Prest. Law. … Provided that the principle was to be properly established then there is one thing that all decision makers would agree upon which would be that “the company was used in an attempt to immunise himself from the liability of wrongdoing”[36] This is consistent in DHN[37] just as much as it is in Gramsci. These companies were wholly owned and controlled by the husband. This was contrasted with Lord Mance and Lord Walker who are very much in favour of keeping the doctrine. Prest narrowed the circumstances in which the doctrine may apply thus, this could show that decision makers are near the end of a long marathon. On the other side of the coin, it would be less harmful than having ambiguous rules. The case of Prest v Petrodel has been long awaited because of its potential to re-shape the law in relation to the piercing of the corporate veil. [48] However, it can be contemplated that slightly narrowing a doctrine which Supreme Court judges do not agree with does not mean that it is progressive. The relatively short judgment in the United Kingdom Supreme Court case of Prest v Petrodel Resources Ltd1(herein, Prest) has garnered vociferous interest from academics and practitioners. [44] It therefore appears that where litigants can show that the relevant tests are satisfied, the courts will allow them to obtain judgement against assets that were intentionally placed out of their reach. The fact that none of these questions seem to provide a clear picture further creates problems today as for a doctrine to develop or adapt to the new changes, the reasoning’s behind the past decision needs to be understood thus, if one cannot do that then how can the doctrine be established. Case ID. This decision can be derived from another legal basis but, it will have the same outcome. It was of key interest as it was a legal cross over between family law and company law. Therefore, the properties could be … The relatively short and significant judgment in the Supreme Court case of Prest v Petrodel Resources Ltd has gathered vociferous interest from academics and practitioners. The whole concept of lifting the veil was derived from Salomon v Salomon [4] where corporate veil was established. Lord Sumption stated that there were two principles: the concealment principle which did not allow courts to lift the veil; and the evasion principle which did 41 . [38] It seems that in every case that involves piercing the veil, the defendants always argue that there is “no such thing as piercing the corporate veil”[39] thus, could it be that many wrongdoers have been able to escape liabilities simply because the doctrine was not well established. Prest (Appellant) v Petrodel Resources Limited and others (Respondents) Judgment date. However, this could prevent flexibility of the courts whilst it faces complex issues which cannot be foreseen by statute. The legal team representing Prest stated that 'the decision is of major importance not only for family law and divorcing couples, but also for company law, and it is the most important reviews since Victorian times on the law regarding piercing the corporate veil'. There is one basis which all judges approve which is that the veil is only to be pierced in exceptional circumstances. Free resources to assist you with your university studies! Additionally, Lord Sumption's principle brought further opposition. About us; Jobs; Blog; Dutch Website ; Contact & Help. Prest v Petrodel Ltd [2013] EWCA Civ 1395 Facts The parties were married in 1993. It could be considered that an alternative approach would be to put the doctrine on a statutory basis so that the courts would have a guide to follow instead of consistently establishing conflicting views between themselves. [33] Lord Clarke argued that Sumption's distinction "the circumstances in which the doctrine apply are rare"[34] This similar reaction has been echoed in the past. It can be indicated that the doctrine could perhaps only exist to give reassurance to corporate businesses in order to ensure them that they have a sense of security in case something goes wrong, but in reality, it does not exist and is rarely applied. [32] Henceforth, this shows that Prest only narrowed only one specific factor in piercing the corporate veil, a factor which cannot be used in all cases. [19] A new provision on how the doctrine should be established was brought in Prest. Looking for a flexible role? Company EXAM Directors' Duties Problem Essay Lecture 2 - xxxc. Has Prest v Petrodel made the law clearer? Prest v Petrodel Resources Limited and others [2013] UKSC 34. Furthermore, there could be an extension which established distinct body rules for corporate groups such as in Germany. UKSC 2013/0004. Edinburgh Napier University... + Show all authors. It can be contended that the doctrine is there but, no one has yet connected the dots to see the full picture of what it entails. Hence, this further indicates that there are still many uncertainties within the doctrine itself. The whole concept of lifting the veil was derived from Salomon v Salomon[4] where corporate veil was established. This essay will argue the decision has done little to fault the Salomon principle. By classifying veil-piercing as evasion, his Lordship suggested that concealment cases were not truly veil-piercing. It can be thus shown, that not much has changed and the decision makers are still unsure as to when the doctrine can be applied. To conclude, it has been suggested by academic commentary that the decision reflects a ‘progressive trend of restricting the doctrine’. Company Registration No: 4964706. [6] When taking into consideration how the law has developed in this area, Cheung describes that it is evident the House of Lords decision in Woolfson [7] came to be source for guidance in subsequent cases. As stated above, Lord Neuberger, Lord Clarke and Lady Hale were not entirely convinced on the validity of the doctrine and seeing it as merely a metaphor which was unclear and inchoherent. Appeal to the Supreme Court by a wife concerning properties vested in several companies and whether they could be treated in ancillary relief proceedings as beneficially belonging to the husband. Hence, this further indicates that there are still many uncertainties within the doctrine itself. Mr and Mrs Prest (who had dual British and Nigerian citizenship) had their matrimonial home in London but it was determined by the court that Mr Prest was based in Monaco. Prest brings a new kind of uncertainty. This could perhaps create more clarity in the sense that decision makers would know what is not meant to be included in the doctrine. Undoubtedly, Lord Neuberger drew different conclusions regarding the application of the principle. 44 Stockin (n43) 365. In Prest v Petrodel Resources Ltd [2013] UKSC 34, the UK Supreme Court has recently reviewed the English law in this area, concluding that the Court has a … Could this perhaps suggest that it is better to abandon the doctrine as a whole rather than to try and figure out what the principle actually proposes to do. The problem was compounded by the absence of any independent directors on … 12 Jun 2013. 15th July 2013. Facts: Mr Prest was an oil-trader. It was held that a limited company was viewed “like any other independent person with its right and liabilities appropriate to itself”[5] The Salomon principle has been the foundation on which company law and business corporations have thrived on for years. It can be indicated that the doctrine could perhaps only exist to give reassurance to corporate businesses in order to ensure them that they have a sense of security in case something goes wrong, but in reality, it does not exist and is rarely applied. It will be argued that the law should not be given its quietus as it seems that judges are somewhat getting closer to an answer. All work is written to order. It seems as if it is an entertaining ground for judges to see what new solution can be made this time around. Furthermore, this can be mirrored in Prest where Lady Hale and Lord Wilson doubted whether it is possible to classify all cases “neatly into cases of either concealment or evasion”[17] Therefore, even to this day there are a lot of question marks as to when and how the doctrine is applied; there are still a lot of unanswered questions which have not been dealt with. Introduction TO Incorporation MAN201 Student Self Test SAQs ECON254 Tutorial 1 Questions Cases on directors duties Company chp - Lecturer; Anu Arora . Prest narrowed the circumstances in which the doctrine may apply thus, this could show that decision makers are near the end of a long marathon. Furthermore, there could be an extension which established distinct body rules for corporate groups such as in Germany. [35] It is said to be a better example of facts for giving rise to the principle of piercing the veil. The question on appeal was whether the court has … PREST V PETRODEL DIVORCE RULING - WHAT IT MEANS FOR BANKS AND BUSINESSES. In Prest v Petrodel Resources Ltd [2013] UKSC 34, the UK Supreme Court has recently reviewed the English law in this area, concluding that the Court has … The law in this area has been rife with conflicting principles and many commentators felt that the Supreme Court decision in Prest v Petrodel provided a unique opportunity 3 to resolve the “never ending story” 4 of when the corporate veil can be pierced. Preview text … On the other hand,it can be argued, that the strictness of the approach led to the doctrine existing more as a matter of legal theory than as a feature of legal practice. On the other hand, Lord Neuberger who had initially been in favour of giving the doctrine its quietus because it had been misapplied in the eighty years indicates that the obiter by Lord Sumption is very influential and could prove to be important in future cases. A Digman A, John Lowry, Company Law (8th edn OUP Oxford), Birds J, Boyle Clark B et al, company Law (9th edn, Jordan Publishing), Dr Wilde C, Smith and Keenan's Company Law ( 17th edn Pearson), Lowry J, and Arad Reisberg, Company Law & Corporate Finance (4th Edn, Pearson, Akansha Dubey et al, 'Family Law' (2014) 3(1), A Alcock 'piercing the veil- A dodo of a Doctrine (2013) 25 denning LJ 241,243, A Bowden 'Concealment, Evasion and Piercing the corporate veil: Prest v Peterodel Resources Ltd [2013], Greens Business law, April 2014, Bull S, 'piercing the corporate veil in England and Singapore' [2014] Heinonline, C Hare, 'Piercing the corporate veil in the supreme court (again)'- The Cambridge Law Journal, 72 [2013] 511-515, Chrysthis N Papacleovoulou, "lifting" or "piercing", 'the corporate veil in Cyprus: a doctrine under challenge- an analysis of English and Cyprus case Law analysis' (2016) 27 (4) ICCLR, D Lightman, 'Petrodel Resources Ltd v Prest: Where are we now?' The new approach found in VTB[40]and Prest significantly restrictive approach to piercing the corporate veil which in effect has relegated the doctrine to a principle of last resort. Could this perhaps suggest that it is better to abandon the doctrine as a whole rather than to try and figure out what the principle actually proposes to do. The court reaffirmed in Prest the well-established judicial conservatism approach that the corporate veil could only be pierced in ‘very rare cases’[13] Therefore, despite the doctrine not being clear, it is well established that the doctrine is not be considered in all corporate cases but, ought to be considered only rare ones. [24] However, despite the two approaches being somewhat clear; Lord Alcock observes that "care must be taken because none of the other six justices of the Supreme Court agreed with Lord Sumption without some qualifications"[25] He also points out that there is substantial uncertainty surrounding the operation of the evasion principle. Search for articles by this author. When the history of the corporate veil is written, the year 2013 will perhaps be given as much prominence as the year 1897. Business & Employment Law lecture 1 notes Company LAW - Lecture Notes I. Justices. The relatively short and significant judgment in the Supreme Court case of Prest v Petrodel Resources Ltd has gathered vociferous interest from academics and practitioners. Similarly, Lord Sumption explains piercing the corporate veil means “disregarding the separate personality of the company”[10] Moreover, as per Lord Keith in Woolfson,[11] he states “it is appropriate to pierce the corporate veil only where special circumstances exist”[12] Consequently, right from the onset, there were conflicting views. Today, the UK Supreme Court allowed It seems that it is going around in a vicious circle without reaching an end-point. [50] However, Prest does confirm that the veil would only be pierced in exceptional circumstances. It can be contended that, even if the doctrine is given is quietus, judges would still apply the principles of piercing the veil unknowingly. Prest v Petrodel raises issues about what structures can be utilised and Akzo Nobel in what structures companies can establish notwithstanding that such structure are common place. He had set up number of companies. As Lazarus[8] explained “no court will allow a person to keep an advantage which had been obtained by fraud”[9] This principle underpinned all of the early attempts to pierce the veil meaning that the court will not allow a corporate personality to be used to protect individuals from wrongdoing. We're here to answer any questions you have about our services. It seems as if it is an entertaining ground for judges to see what new solution can be made this time around. In an action for ancillary relief the husband argued that properties could not be transferred to the wife as they were legally owned by various companies. Lord Mance argued that “It is dangerous to seek to foreclose all possible future situations which may arise and I would not wish to do so”[31] Furthermore, it should be considered that Prest only dealt with one specific class of asset which were held by those of corporate entities. Related Studylists . [16] Hence, this suggests that there is no clear structure to be followed. On the other side of the coin, it would be less harmful than having ambiguous rules. Mrs Prest’s appeal against the judgment of the Court of Appeal that seven properties in London owned by the Petrodel group of companies are not properties to which the sole controller of the group is ‘entitled, in The reception which the doctrine received forty years ago is still echoed to this day in Prest. [16] Hence, this suggests that there is no clear structure to be followed. It would possibly be applied in conjunction with other laws which would have the same effect and outcome as piercing the corporate veil. [2] The principles of lifting the corporate veil for the past eight decades seemed to have never been wholly established as judges always contradicted each other and never reached a unanimous decision. Contrarily to the above, despite there not being a set doctrine, it seems that the Lordships all agree on one aspect. No plagiarism, guaranteed! order now. Prest v Petrodel was finally adjudicated by the Supreme Court. [23] Contrarily, the evasion principle applies where a person is under an existing legal obligation which he deliberately evades by interposing a company under his control. Disclaimer: This essay has been written and submitted by students and is not an example of our work. Facts. It seems that the judges only deal with these when and how it comes. In 2017, it is very difficult to predict what the future path for the doctrine will take as there are many conflicts on this topic even from the Supreme Court judges. It was Lord Sumption in Prest v Petrodel Resources who recognised that there is a limited power to pierce the corporate veil exceptional cases when it is deemed necessary to do so. 9 Min read. It can be contended that the doctrine is there but, no one has yet connected the dots to see the full picture of what it entails. This could perhaps be a starting point of a well-established doctrine. One of Mr Prest’s failings was to provide funding without properly documented loans or capital subscription. Prior to Prest, in Lipman,[14]the only way to lift the veil was if the company was regarded as a sham or mere façade. On the other hand, Lord Neuberger who had initially been in favour of giving the doctrine its quietus because it had been misapplied in the eighty years indicates that the obiter by Lord Sumption is very influential and could prove to be important in future cases. Prest v Petrodel Resources Ltd 40, the most recent decision of the Supreme Court on the issue, has not clarified the matter. The general press comment centred upon the former wife obtaining her “just rewards” whereas the legal commentary focussed on … This could perhaps create more clarity in the sense that decision makers would know what is not meant to be included in the doctrine. Another was to take funds from the companies whenever he wished, without right or company authority. At the time it received a lot of general press comment as well as a lot of legal commentary. In this regard, the very recent decision of the Supreme Court in Prest v Petrodel Resources Ltd [2013]12 has introduced a new approach at the concept of veil. VAT Registration No: 842417633. Thus, even if it is given its quietus, the doctrine would still be there transparently. - Trust & Trustees (2013) 19 (9):877, J McDonagh, 'Piercing the corporate veil in the family division: Prest- the latest from the court of appea'l- Trust and Trustees (2013) 19 (2) 137, J Payne 'Lifting the corporate veil: A reassessment of the fraud exception' Cambridge law Journal, 56 (2) July 1997, Mujih E, 'Piercing the corporate veil as a remedy after Prest V Petrodel resources Ltd: Inching towards Abolition' [2016] Westlaw 17,17, Pey Woan Lee, 'The Enigma of Veil- Piercing' (2015) 26 (1) ICCLR 28, 30, Spear's, 'Expert analysis of the Prest Judgement' (Spear's ,11 June 2013), Tan Cheng-Han, 'Veil piecing- a fresh start' (2015) 1 JBL, Spear's, 'Expert analysis of the Prest Judgement (Spear's ,11 June 2013)
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