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Authors: Allan, G. W.
Griffin, S.
First Published: 2016
Publisher: Wiley, Society of Legal Scholars
Citation: Legal Studies In Press
Abstract: The landmark Supreme Court judgment in Prest v Petrodel Resources Ltd provides a significant re-assessment of the law relating to a court’s ability to circumvent corporate personality. The Supreme Court considered that the application of ordinary legal principles (‘the concealment principle’) should ordinarily override a court’s ability to apply an equitable veil-piercing doctrine (‘the evasion principle’). Whilst accepting the primacy of the concealment principle, this article disputes the correctness of the Supreme Court’s implied assertion that, in cases concerning ‘one man-type’ companies, the concealment principle should be advanced through application of agency-derived principles. Rather, this article contends that the concealment principle should be progressed by adopting solutions derived from the law of constructive trusts and associated principles of equity. To an objective of providing a doctrinally sound framework for the development of the law in the post-Prest era, this article further suggests that the constituent elements of the evasion principle could be consistent with the operation of a distinct species of constructive trust. Moreover, it is argued that, in future, this ‘evasion trust’ should, in complete abrogation of the equitable piercing doctrine, be developed so as to apply in all cases exhibiting intentional and fraudulent abuses of the incorporation process.
ISSN: 0261-3875
eISSN: 1748-121X
Links: TBA
Embargo on file until: 1-Jan-10000
Version: Post-print
Status: Peer-reviewed
Type: Journal Article
Rights: Creative Commons “Attribution Non-Commercial No Derivatives” licence CC BY-NC-ND, further details of which can be found via the following link: Archived with reference to SHERPA/RoMEO and publisher website.
Description: 24 Month embargo from publication
Appears in Collections:Published Articles, School of Law

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