Moore Stephens v Stone Rolls Ltd

Moore Stephens v Stone Rolls Ltd
Court	House of Lords
Citation(s)	[2009] UKHL 39; [2009] 3 WLR 455
Case opinions
Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Mance
Keywords
Fraud, illegality, attribution

Moore Stephens v Stone Rolls Ltd [2009] UKHL 39 is a leading case relevant for UK company law and the law on fraud and ex turpi causa non oritur actio. The House of Lords 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.

Facts

Stone & Rolls Ltd was wholly owned and directed by Mr Stojevic. Moore Stephens 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) had successfully sued both the company and Mr Stojevic. The company went into liquidation. Now 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 auditors, Moore Stephens, requested 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).

Judgment

High Court

Langley J ([2007] EWHC 1826 (Comm)) 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

Mummery, Keene and Rimer LJJ ([2008] EWCA Civ 644) reversed Langley J's decision holding that the illegality defence could not be removed simply because the very thing the auditors were meant to do was to detect fraud.

House of Lords

Lord Phillips, Walker and Brown dismissed the appeal and held that the auditors, Moore Stephens, could rely on the ex turpi causa defence to debar the company's claim for negligence. They held that 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.^[1] 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 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 dissented.

Significance

Commentators argue that the majority misapplied the facts and overlooking the relevance of insolvency to the application of attribution.^[2]

• Safeway Stores Ltd v Twigger [2010] EWCA Civ 1472, if an undertaking is penalised by the OFT 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.

See also

• Caparo Industries plc v Dickman
• Hewison v Meridian Shipping Services Pte Ltd [2002] EWCA Civ 1821

Notes

1. ^ Capuano A, 'Catching the Leprechaun: Company Liability and the Case for a Benefit Test in Organic Attribution', (2010) Vol 24 No 2 Australian Journal of Corporate Law
2. ^ Capuano A, 'Catching the Leprechaun: Company Liability and the Case for a Benefit Test in Organic Attribution', (2010) Vol 24 No 2 Australian Journal of Corporate Law

References

External links

• Case report (25.6.2009) The Daily Telegraph
• Moore Stephens' website