Corporate Attribution

L. Sealy, The Corporate Ego and Agency Untwined [1995]

a framework of attribution is a necessary result of the “legal fiction” of a company’s personality

Lord Hofmann in Meridian Global Funds Management Asia Ltd. v Securities Commission [1995]

“there is no such thing as the company as such, no ding an sich” (attribution is necessary)

3 ways to “attribute” responsibility to a fictional person:

i] primary rules of attribution (company constitution, identification doctrine)

ii] general rules of attribution

iii] special rules of attribution

Lennard’s Carrying Co. Ltd. v Asiatic Petroleum Co. Ltd. [1915]

introduced attribution of an act to a company based on a natural person representing the “directing mind and will” and who possessed necessary mental elements

Teso Supermarkets Ltd. v Natrass [1972]

“directing mind and will” can’t just be “another person”

• company constitution indicates who has exercisable power

• anyone with full discretion to act independently

Davis LJ in Serious Fraud Office v Barclays [2020]

Davis LJ —> recognized that identification doctrine was too narrow and allowed large companies with devolved management to escape liability, but necessary for legal certainty

“directing mind/will” to a particular function

Anna Donovan, Reconceptualizing Corporate Compliance, Responsibility, Freedom and the Law [2021]

vertical ladder of decision-making makes crimes more likely to be committed

• outsourcing of moral responsibility means individuals enter an “agentic state”/experience cognitive dissonance

s.196 ECCTA

replaces identification doctrine with test of “senior manager” for economic crimes

s.199 ECCTA

company has strict liability for fraud —> defence of having adequate procedures in place

Bribery Act [2010]

company has strict liability for bribes —> defence of having adequate procedures in place

arose in response to UK’s identification doctrine being too strict by international standards

s.9() means SoS publishes guidance about relevant procedures (tick-box exercise?)

Criminal Finances Act [2017]

company has strict liability for tax evasion —> defence of having adequate procedures in place

S. Copp & A. Cronin, New models of corporate criminality

strict liability and “adequate procedure” defence shifts burden onto company —> leads to proactive steps that reduce occurrence of crimes

Corporate Manslaughter and Corporate Homicide Act 2017

company is liable if “the way activities are managed or organized causes the death of a person and amount to a gross breach of duty” —> previous law required individual person to attach liability to

c.f. Australia Criminal Code —> companies are always criminally liable if they fail to create a culture of compliance

Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd. [1964]

i] representation that agent had authority to enter company into a contract

ii] representation must come from people with “actual authority” over company

iii] representation created reliance

iv] company had capacity to make such an agreement or delegate work to an agent

Ernest v Nicholls [1857]

parties held to have “constructive notice” of a company’s constitution

Chandler v Cape [2012]

parent company liability is not piercing the veil, and regular application of tortious principles:

i] companies are in same line of business

ii] superior knowledge of health/safety

iii] parent ought reasonably to have known that subsidiary’s system of work was unsafe

iv] parent ought to forseen that subsidiary/its employees would have relied on the parent’s experience

Vedanta Resources plc & anr v Lungowe & Ors [2019]

indicia in Chandler are particular examples and no more —> apply regular tortious rules

Okpabi v Royal Dutch Shell [2021]

issue is not of parent company’s control, but to what extent they took over/managed relevant activity

cases are not a new and novel category of DoC