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The possibility of limiting vicarious liability
The possibility of limiting vicarious liability
The first is whether these provisions are effective to limit any vicarious liability that Begbies LLP may have for the actions (or inactions) of the Former Liquidators.
As regards vicarious liability, I need to be somewhat circumspect as I have not been asked to make any findings about vicarious liability, and I will avoid doing so. I have been asked to assume vicarious liability, but I have not been given the basis on which this assumption applies.
As I cannot determine within the scope afforded to me at this stage whether Begbies LLP or any Begbies Traynor Persons (as each is defined in the Terms) are vicariously liable for the acts of the Former Liquidators, all I can say is:
it does not follows from my finding that there can be no limitation of liability for liquidators that a corporate entity or other employer of a liquidator could not limit its vicarious liability for acts of the liquidator;
it appears to me that the limitation of liability in numbered paragraph 7 of the LoEs (excluding liability “in contract, tort, statute or otherwise and howsoever caused (including negligence)”, taken with clause 13 of the Terms is wide enough to cover vicarious liability including vicarious liability for the acts or omissions of the Former Liquidators.
I can see that there is a potential corollary to one of the arguments pursued by the Claimant before me that could be used as an argument against the being vicarious liability.
This is the argument that the Former Liquidators were acting as independent persons under the appointments respectively by the Claimant Companies, and not under the provisions of the LoEs and not on behalf of or in pursuance of the business of Begbies LLP or BTG Advisory. However, I understand that as regards Begbies LLP at least the Claimants are looking to deploy an argument made under the specific wording of provisions of the Limited Liabilities Partnerships Act 2000.
Those arguments will need to be pursued in another forum.
- Heading
- Introduction Can liquidators or their firms dealing with a members’ voluntary liquidation limit their liability? This question is at the heart of the matter that has been argued before me in a two-day trial of a p
- BACKGROUND
- THE CLAIMANTS’ CASE THAT IT IS IMPOSSIBLE FOR LIQUIDATORS TO LIMIT THEIR LIABILITY
- The argument that the statutory regime does not provide for, and therefore excludes limitations of liability
- The argument based on a statutory trust
- The argument based on ousting the powers of the court
- Further arguments
- THE DEFENDANTS’ CASE THAT IT IS POSSIBLE FOR LIQUIDATORS TO LIMIT THEIR LIABILITY
- The argument that the statutory regime does not provide for, and therefore excludes limitations of liability
- The argument based on a statutory trust
- The argument based on ousting the powers of the court
- The Defendants’ answer to the Claimants’ further arguments
- WOULD ANY POWER TO LIMIT LIQUIDATORS’ BE FOR ONLY FOR SHAREHOLDERS TO EXERCISE?
- DO THE LOES AND TERMS HAVE EFFECT AFTER THE APPOINTMENT OF THE LIQUIDATORS?
- The arguments relating to construction
- The possibility of limiting vicarious liability
- Can BTG Advisory can benefit from the limitations of liability?
- The application of clause 13.2.4 of the Terms
- Conclusions