Gencor ACP Ltd (2000)


Orders for summary judgment or interim payments on various claims by the claimant companies arising out of the misfeasance of two of their former directors.


Application by the claimant group of companies ('ACP') for summary judgment under CPR Part 24, or for an interim payment under CPR Part 25. The first and third defendants ('D' and 'M') were directors and employees of ACP prior to their dismissal. ACP contended that D and M had, in breach of their fiduciary duties to ACP, dishonestly diverting ACP assets and opportunities to themselves or to companies controlled by them, notably the fourth and twelfth defendants. D contended that ACP would not in any event have been able to take up most of the opportunities in question. In relation to the diversion by M of assets and opportunities from which he had derived no personal benefit, ACP contended that he had knowingly and fraudulently assisted D to commit his breaches of fiduciary duty.


(1) Summary judgment or an order for an interim payment under CPR 25.7 was appropriate in relation to many of the claims against D. (2) In relation to the claim of fraudulent assistance against M the court was not sufficiently satisfied that: (a) the principle identified by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Philip Tan Kok Ming (1995) 3 WLR 64 applied in the case of alleged dishonest assistance in a breach of fiduciary duty not involving the misapplication of a trust fund or other property subject to a fiduciary obligation. In Rex Goose v (1) Wilson Sandford & Co (a firm) (2) Gerard Mainon (2000) LTL 14/3/2000 that point was left open; or (b) M had been dishonest.

Judgment accordingly.