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Directors' Personal Liability for Cartel Activity Under UK and EC Law—A

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Directors' Personal Liability for Cartel Activity Under UK and EC Law—A 632 HUGHES: DIRECTORS’ PERSONAL LIABILITY FOR CARTEL ACTIVITY: [2008] E.C.L.R. a piecemeal fashion and without any unifying policy Directors’ Personal goal. Some of the laws under consideration are in a state of flux, others have only partially been used Liability for Cartel by regulators or tested by the courts and some have only very recently been used. All of them raise the issues of the precise degree of individual responsibility Activity under UK attributable to a director and the willingness of the law to disregard corporate personality before individual and EC Law—A liability will arise. Tangled Web Directors’ liability at common law for deceit Paul Hughes There are clearly discernable tensions between a direc- Senior Academic, University of Westminster* tor’s possible liability for breaches of competition law and general corporate law principles. This tension can Cartels; Directors’ liabilities; EC law; Torts; be found in the tort of deceit where that deception United States underpins collusive activity. The development of the company as a separate legal entity and the protec- tion of investors through the concept of limited liability have been credited with underpinning modern economic Introduction development.1 The concepts of limited liability and separate corporate personality are national constructs. Contributions by lawyers in the United Kingdom to They have been considered by the English courts over the debate regarding personal liability for cartel activity many years and remain in good health.2 Directors are have tended to focus on dishonest behaviour under merely the agents of the companies whose interests they s.188 of the Enterprise Act 2002 or liability under s.1 serve, with the company being vicariously liable for of the Sherman Act. However, there are aspects of the their acts.3 However, recent judgments4 have affirmed English common law, statutory and EC Treaty measures that the human agent of a company, the director, will which are relevant to directors who infringe competition face personal exposure for certain tortious acts, even law and which do not appear to have been subject to where the wrongdoing was ostensibly on behalf of the collective scrutiny. They possess quite different aims company. and features but nevertheless constitute a credible threat A director will be personally liable if he or she to a director’s position. They can give rise to personal dishonestly or recklessly misleads a third party into liability or may deny a director his or her capacity believing that the company which the director represents to represent a company. This law has developed in is not involved in anti-competitive behaviour, where the third party is intended to rely upon that statement and it induces the party to enter into a transaction. The * ‘‘Oh what a tangled web we weave when first we practise to deceive!’’ Sir Walter Scott in ‘‘Marmion’’, canto vi, stanza misrepresentation need not be the only factor influencing 17: the tangled web may be regarded as being not only the that third party to enter into the transaction, but it deceptions practised but also the legal tangle to which this article refers. This article is based on a talk given by the author at the 11th Competition Law Scholars Forum (ClaSF) 1 John Micklethwait and Adrian Wooldridge, The Company: a Conference held at the University of Strathclyde on April 10, Short History of a Revolutionary Idea (London: Phoenix, 2005). 2008, updated and expanded to refer to subsequent competition 2 Salomon v Salomon and Co Ltd [1897] A.C. 22 first law developments which the talk anticipated; in particular, the established the concept of separate legal personality, distinct first director disqualifications for breaches of competition law from that of the shareholders, and this has been reaffirmed in which occurred on June 11, 2008 in the marine hose cartel case numerous cases such as Lee v Lee’s Air Farming [1961] A.C. 12 and the orders for the recovery of criminal gains which were and Adams v Cape Industries Plc [1990] Ch. 433. made on July 1, 2008 against two of the executives involved in 3 Standard Chartered Bank v Pakistani National Shipping Corp that case. I am extremely grateful to Angus Johnston, Lecturer (No.2) [2003] 1 A.C. 959. in Law at Cambridge University, for his helpful comments on 4 Contex Drouzhba v Wiseman [2006] EWHC 2708 (upheld on an earlier draft. The author remains wholly responsible for any appeal [2007] EWCA Civ 1201); Renault UK Limited v FleetPro remaining errors. Technical Services Ltd [2007] EWHC 2541. [2008] E.C.L.R., ISSUE 11 © 2008 THOMSON REUTERS (LEGAL) LIMITED AND CONTRIBUTORS HUGHES: DIRECTORS’ PERSONAL LIABILITY FOR CARTEL ACTIVITY: [2008] E.C.L.R. 633 must have a real or substantial effect. In Edgington v claimed that the company in which they acquired their Fitzmaurice5 the directors falsely stated in a prospectus shares would have the right to use steam rather than that subscriptions for debenture bonds were invited to horse power to drive its trams. The investors sued the develop the company’s business through the acquisition directors personally for the tort of deceit, the only legal of transport when the money was really required ground on which action might be then be taken for to ‘‘meet the pressing liabilities of the company’’.6 a pre-contractual statement which did not become a This statement by the defendant directors misled the term of the contract. Their action was successful before claimant, who was also labouring under the further the Court of Appeal,14 but the defendants won their misapprehension that his debenture would be secured. appeal to the House of Lords.15 Both courts accepted the His claim against the directors succeeded, since he was principle that the directors might have been liable had misled by the statement in the prospectus, even though they been dishonest or reckless in making the statement this was not the sole reason for his subscription for in the prospectus. The House of Lords held that they debentures in a company which subsequently became had an honest (but misplaced) belief that the necessary insolvent. Board of Trade consent (to use the more efficient and Where deceit occurs, the third party is entitled to be economic steam power) was a mere formality and thus compensated for all losses flowing from that deceit.7 It were not liable. Lord Herschell16 explained that the has been argued in the context of deceit that the claimant requirements of the tort of deceit were as follows: should be entitled to an account of profits, although the ... availability of such a remedy remains in doubt.8 It has ‘‘ fraud is proved when it is shown that a false 9 representation has been made (i) knowingly, (ii) without recently been held that losses for deceit can include belief in its truth, or (iii) recklessly, careless whether it be losses for lost opportunity, namely the opportunity to true or false...’’ purchase from someone other than the tortfeasor. The opportunity to purchase from others may be merely This does not require dishonesty to the criminal law theoretical if the whole sector is cartelised. standard17 required by the Enterprise Act 2002. In deceit cases, the allegation of fraud need only The expansion of tortious liability to include negligent be demonstrated to the civil standard of probability, misstatements in Hedley Byrne v Heller18 caused although as Irwin J. remarked in Contex Drouzhba judicial confusion in the context of director liability v Ronald Wiseman10 (citing Hornal v Neuberger for misrepresentations made when acting on behalf of Products11), ‘‘...the Court should in practice require the company. The key elements of liability for negligent more convincing evidence to establish fraud’’ as misstatement are the possession of special skill and the compared ‘‘with other types of allegation’’. assumption of liability for statements made. In principle, At common law it has been possible for a director this has now been extended to include statements made to be guilty of the tort of deceit for many years.12 by directors who hold themselves out as having special In the case of Derry v Peek,13 investors had acted experience or skill and who assume personal liability in reliance upon a company prospectus which falsely for the veracity of those statements. In Williams v Natural Life Health Foods Ltd,19 the claimant was 5 Edgington v Fitzmaurice (1885) L.R. 29 Ch. D. 459. a prospective franchisee intending to set up a health 6 Edgington v Fitzmaurice (1885) L.R. 29 Ch. D. 459 per food store in Rugby. The defendant company had Cotton L.J. at 480. supplied franchise material which included a brochure 7 East v Maurer [1991] 1 W.L.R. 461; Doyle v Olby (Ironmongers) Ltd [1969] 2 Q.B. 158. and financial information. The financial information 8 An account of profits for fraudulent misrepresentation was was based on the managing director’s experience of sought in Murad v Al-Saraj at first instance and considered a possibility by Etherton J. ([2004] EWHC 1235 (Ch)) but strongly doubted by Arden L.J. on appeal ([2005] EWCA Civ 959). Its 14 Derry v Peek (1888) L.R. 37 Ch. D. 541. availability must be in doubt following Devenish Nutrition Ltd 15 Derry v Peek (1889) L.R. 14 App. Cas. 337. v Sanofi-Aventis SA [2007] EWHC 2394 (Ch). 16 Derry v Peek (1889) L.R. 14 App. Cas. 337 at 374. 9 4EngLtdvHarper[2008] EWHC 915 (Ch), a case where the 17 See Evans L.J. in Standard Chartered Bank v Pakistan deceit led a purchaser to acquire a company where it would have National Shipping Corp (No.2) [2000] 1 Lloyd’s Rep.
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