Case No. CL-2019-000290

[2011] EWHC 1731 (Ch). At [1096] he identified the relevant test as follows: "What is the relevant test of attribution of responsibility beyond the narrow class of case where an agency relationship exists? In my judgment, the test is whether the defendant in a section 994 claim is so connected to the unfairly prejudicial conduct in question that it would be just, in the context of the statutory regime contained in sections 994 to 996, to grant a remedy against that defendant in relation to that conduct. The standard of justice to be applied reflects the requirements of fair commercial dealing inherent in the statutory regime. This is to state the test at a high level of abstraction. In practice, everything will depend upon the facts of a particular case and the court's assessment whether what was done involved unfairness in which the relevant defendant was sufficiently implicated to warrant relief being granted against him." 65.While there is clearly considerable scope for argument as to whether this test is met in circumstances in which none of the payments were made to Albion, and neither Albion’s 20% shareholding nor Mr Atherton’s position as a director are alleged to have been used for the purpose of effecting the Disputed Payments, the test propounded by Sales J is highly fact-sensitive. I do not feel able to say on the state of the evidence before me that EIGL has no realistic prospect of establishing that attribution to Albion is appropriate on the facts of this case. 66.It follows that I am satisfied that EIGL has shown a serious issue to be tried in respect of this first stage in its argument.