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04 December 2008 / Victor Joffe KC , James Mather
Issue: 7348 / Categories: Features , Commercial
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The vanishing exception?

Part 2: Victor Joffe QC & James Mather continue their refl ections on controversial cases on ability to pay
 

In Giles v Rhind [2003] 1 BCLC 1, [2003] All ER (D) 340 (Oct) the Court of Appeal held that there was an exception to the no reflective loss principle where the defendant had by his own wrongdoing so destroyed or disabled the company that it was unable to pursue its claim against him.

The facts in Giles v Rhind

In breach of his service agreement with the company SHF, D set up a competing company, to which he induced SHF’s major customer to transfer its business. SHF issued proceedings against D, but went into administrative receivership, and was forced to discontinue because it had no funds to provide the security for costs which it was ordered to pay on D’s application.

The claimant, a shareholder in SHF, then brought proceedings against D claiming damages for breach of a shareholders’ agreement to which they were both party. Th e claims included

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MOVERS & SHAKERS

Sackers—Zak Ullah

Sackers—Zak Ullah

Sackers welcomes new associate

Christy Davies—Birmingham Law Society

Christy Davies—Birmingham Law Society

Ward Hadaway lawyer joins Birmingham Law Society Council

Ellisons—Stephanie Westwood & Anisa Khan

Ellisons—Stephanie Westwood & Anisa Khan

Ellisons expands Chelmsford commercial litigation team with two appointments

NEWS
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Careless client checks do not automatically make a solicitor dishonest, but deliberately avoiding confirmation of suspected wrongdoing can cross the line
Construction workers injured in comparable accidents can face sharply different routes to compensation on opposite sides of the Atlantic
Victims of undue influence may have more options than simply unwinding a tainted transaction, with courts able to order profits accounts, compensation and, exceptionally, severance
Disabled people could lose vital safeguards following the Supreme Court’s reversal of the Cheshire West test for deprivation of liberty, two barristers warn
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