By Nicholas Gordon
This article summarises the key points made by Popplewell J, in the recent case of Madoff Securities International Ltd (in liquidation) v Raven and Others (2013) in relation to statutory and common law defences to misfeasance claims against directors. His judgment provided a concise review of the law and also resolved an issue regarding actionable loss.
In many misfeasance/breach-of-duty cases against directors/former directors of a company now in liquidation, the facts evidence that breach or breaches are relatively clear cut and uncontroversial. This draws into focus the question of whether the director has any common law or statutory defence available to a claim against him/her for restitution to the company. This is important to officer holders and directors alike as it has an impact upon the prospects of successfully pursuing/defending a claim and any settlement negotiations…
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