Following the handing down of judgment in March 2023 following an eight-day trial on liability in Aston Risk Management Ltd v Jones & others [2023] EWHC 603 (Ch) (which raised issues including de facto directorship within a group and the application of evidential burdens of proof) and the threshold tests applicable to certain forms of accessory liability, His Honour Judge Cawson KC handed down judgment on 9 February 2024 following the trial on quantum, [2024] EWHC 252 (Ch). Orders were made against the first defendant for payment of £1,399,603.95 equitable compensation and against the fifth defendant to account for £130,418.95 held by the fifth defendant on a constructive trust arising as a consequence of that defendant’s knowing receipt of monies paid to it on invoices in breach of trust. Outstanding matters, including interest and costs, remain to be dealt with at a further consequential hearing.
The proceedings in Aston were issued out of the Manchester District Registry, Business List in July 2020. The Claimant, a special purpose vehicle which took assignment of the causes of action advanced from the liquidator of the company by which the payments challenged were caused to be made, was advised and represented by Louis Doyle KC of Kings Chambers, Manchester, instructed by Ian Austin, Mark Fairclough and Matthew Kurzeja of FieldFisher, Manchester. The Claimant’s expert accountant was Mark Fairhurst FCA MAE, an independent forensic accounting consultant.
Since taking silk in 2020, Louis’s practice has featured advising and appearing on a significant number of cases concerning relief sought against delinquent directors, both in the context of claims by insolvency office-holders and non-insolvency Part 7 claims, often coupled with interim injunctive relief.
As well as a consideration of the function of equitable compensation by reference to a number of Commonwealth decisions, one notable point arising from the judgment in Aston was the Judge’s agreement at [55] with the submission for the Claimant that, following the leading authorities, Target Holdings Ltd v Redferns [1996] 1 AC 421 and AIB Group (UK) Ltd v Mark Redler & Co [2015] AC 1503, decisions of the House of Lords and the Supreme Court respectively, and in adopting a common-sense approach to loss with the wisdom of hindsight (equitable compensation not involving the concepts of foreseeability or causation applicable to common law damages), a comparison has to be made between what happened in reality and what the Court considers would have happened absent the breaches of duty established against a defendant. As Judge Cawson KC put it, “I agree with Mr Doyle KC that, in considering the counterfactual, one is entitled to have regard to the characteristics of the party who has acted in breach of fiduciary duty“, such as, for example, an aptitude for dealmaking or finding practical solutions to commercial issues.
