The decision in Crown Prosecution Service v Aquila Advisory Limited provides welcome clarification on the interplay between POCA and common law recovery. It seems companies may still be subject to the POCA regime and stripped of a potential windfall which the CPS did not avail themselves of in this case.
Where clients rely on the criminal justice system to prosecute fraud and repatriate funds lost due to dishonest breach of fiduciary duties of a senior officer, the decision in Crown Prosecution Service v Aquila Advisory Limited [2021] UKSC 49, provides welcome clarification on the interplay between POCA and common law recovery.
The decision underlines a company’s capacity to enforce its proprietary rights in priority to unsecured creditors, though a constructive trust and represents a significant weapon where directors are in receipt of unauthorised profits in breach of their fiduciary duties. The ability to do so would not be undermined by the illegality of directors’ acts, which would not be attributed to the company and where companies may, as in this case, decide to pursue their own recovery
However, as a caveat, it seems companies may still be subject to the POCA regime and stripped of a potential windfall under Parts 2 and 5 of POCA, which the CPS did not avail themselves of in this case.
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In a judgment handed down yesterday the Supreme Court has affirmed that a so called “creditor duty” exists for directors such that in some circumstances company directors are required to act in accordance with, or to consider the interests of creditors. Those circumstances potentially arise when a company is insolvent or where there is a “probability” of an insolvency. We explore below the “trigger” for such a test to apply and its implications.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
Universities and colleges are not immune from deception by unscrupulous bad actors. The extent to which educational institutions can manage and control risk not only depends on financial management and internal controls, but also the robustness of security and processes which can be exploited from outside the organisation.
The Supreme Court has unanimously dismissed the BTI v Sequana appeal and reviewed the existence, content and engagement of the so-called ‘creditor duty’; being the point at which the interest of creditors is said to intrude upon the decision-making of directors of companies in financial distress.
On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
In November 2021, The Civil Justice Council’s published its interim report on proposed changes to the current Pre-Action Protocols, which included a mandatory Alternative Dispute Resolution (ADR) gateway. In this article, we look at proposed reforms and consider what this could mean for your case.
Whilst the weather conditions are predicted to be cooling down this week, the Health and Safety Executive (HSE) is asking employers and businesses to consider adapting to recurrent warmer weather conditions for the safety and benefit of their staff. It asks employers to ensure that extreme heat becomes a firm part of longer term risk management. Climate change in any event is something all businesses will need to consider as the warmer weather becomes more frequent - extreme heat is something that will impact employers on a day to day basis.
The Highway Code has had its first major revision since 2007. Amongst several changes, a new hierarchy has been created, with road users who are most likely to cause harm having the greatest responsibility to reduce the threat they may pose to other road users (rule 204 of the Code).
The decision in Crown Prosecution Service v Aquila Advisory Limited provides welcome clarification on the interplay between POCA and common law recovery. It seems companies may still be subject to the POCA regime and stripped of a potential windfall which the CPS did not avail themselves of in this case.
Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.
Civil claims are an ongoing area of concern for schools, with the potential for financial and reputational implications. Here at Browne Jacobson we assist both maintained schools and academies in dealing with the full range of civil claims that schools face.
In 2016, Lord Justice Briggs set out his proposals for restructuring the civil courts and tribunals in England and Wales. The vision for modernising court services and creating the “Online Court” has seen the introduction of online platforms for civil claims in recent years but progress has been described as slow.
The importance of Trusts developing a written plan so that you are ready to act quickly if anti-Covid or anti-vaccination protesters come on to your site to protest.
With the Government predicting that up to 20% of the workforce could be off at the same time during the pandemic and a period of economic uncertainty expected to follow, we are likely to see a significant rise in claims against professionals stemming indirectly from the Covid-19 outbreak.
Boards across the country are working tirelessly to respond to an ever-evolving situation as quickly as they can - with one eye on trying to protect the business, employees and wider stakeholders and the other on ensuring that they are always acting in the best interests of their shareholders.
On Saturday, 28 March 2020, Business Secretary, Alok Sharma MP, announced changes to the insolvency regime as part of the governments overriding objective.
The Chancellor’s latest Budget Report outlined that the Government will introduce a £100 million Economic Crime Levy, otherwise known as the AML Levy no earlier than April 2022 to fund action to tackle money laundering and ensure delivery of reforms in the Government’s Economic Crime Plan.
As part of the Government’s package to support businesses to manage the impact of COVID-19, it has announced that companies will from today (25 March 2020) be given an additional 3 month period to file their accounts at Companies House.
The Chancellor, Rishi Sunak has just delivered his first budget and, in a blow to many who were hoping for a late reprieve, the Government has confirmed that IR35 changes which had long been expected are continuing next month.
Contingent loss is relevant to limitation; specifically, the date at which a claimant’s cause of action accrues for the purposes of a claim in the tort of negligence (as many claims against professional advisers are framed).
Last month we reported that the House of Lords and House of Commons Joint Committee report on the draft Registration of Overseas Entities Bill had been published.
On 16 July 2019 the Serious Fraud Office released details of the Deferred Prosecution Agreement reached with Sarclad Ltd in July 2016.
Companies should undertake a comprehensive review and audit to identify those products and legacy contracts that are LIBOR-linked and carry out an in-depth risk assessment of discontinuation. Where possible, companies should look at appointing an individual to oversee the programme.
Our banking & finance partners, Paul Ray and Jonathan Edwards, give an update on an important legal development that has been proposed in the finance sector.
The Court of Appeal has set out six steps to be considered when applying the ‘SAAMCo’ scope of duty principle in auditors’ negligence cases.