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Company law, Commercial disputes, International / offshoreWednesday 5 April 2023

Permission to appeal in Mitchell v Al Jaber [2023] EWHC 364 (Ch)

Clare Stanley KC, Jia Wei Lee and Lemuel Lucan-Wilson have secured permission to appeal from the decision of Mrs Justice Joanna Smith DBE in Mitchell v Al Jaber [2023] EWHC 364 (Ch).

The case raises three important issues which the Court of Appeal will have to grapple with in due course:

  • Whether, as a matter of BVI law (and English law, to the extent they overlap), a director owes fiduciary duties in respect of company’s assets post-liquidation, and if so, what the scope of these duties is;
  • Whether there is a material distinction in English law between “substitutive” and “reparative” orders for equitable compensation, and if there is, how that distinction affects the approach taken to assessing awards of compensation;
  • When, and in what circumstances, an unpaid vendor’s lien is excluded.

The first two issues in particular present foundational questions about the nature of equitable duties which have troubled judges and academic lawyers for many decades. This appeal presents yet further opportunity for the Court of Appeal to provide guidance and clarity in a challenging but essential area of law.

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