South Square Private Law Seminar: 'Illegality and Attribution: Why Stone v Rolls, Bilta, and Patel are Wrong'

Speakers: Dr Rachel Leow, National University of Singapore & Mr Timothy Liau, University of Oxford

Abstract

Before the House of Lords decision in Stone & Rolls Ltd (in liquidation) v Moore Stephens [2009] UKHL 39, [2009] 1 AC 1391, the topics of illegality and attribution appeared to have nothing to do with each other. Since then, the topic has spawned an enormous amount of academic literature and multiple decisions on both illegality and attribution by the highest courts of this country. This paper examines the central question raised by these cases: if acts or states of mind of a wrongdoing individual can be attributed to the company to establish the company’s liability in private law, can they be attributed to the company when the company is bringing a claim against the individual or a third party, whether for the illegality defence or some other doctrine? It argues that the current approach of the law is wrong in principle as it requires the law to contradict itself, saying that within private law an act or state of mind both is and is not the company’s. It proposes a simple ‘both ways’ test: the same rules of attribution should be used both where the company is bringing a claim as where the company’s liability is in question. However, the effect of attribution depends on the substantive rule of law in question.

This seminar is open to all LLM, MCL and PhD students, Faculty members and Faculty visitors.