Already an IBA member? Sign in for a better website experience
The IBA’s response to the situation in Ukraine
Debevoise & Plimpton, London
Debevoise & Plimpton, London
Debevoise & Plimpton, London
Debevoise & Plimpton, London
The rule against reflective loss has been formulated and applied in case law to date in both England and Wales, and the Netherlands. The suggestion that the rule is driven by an intention to avoid double recovery has been rejected in England and Wales, pursuant to the recent Supreme Court judgment in Marex. The avoidance of double recovery is, however, one of the considerations upon which the rule is based in the Netherlands.
While there are currently no exceptions to the rule in England and Wales, there is an exception under Dutch law, essentially, where the wrongdoer has breached a specific duty of care owed to the shareholder.
Minority shareholders in both jurisdictions may argue, under certain circumstances, that they have been unfairly prejudiced (in England and Wales) or that they are (what is commonly known as) ‘strangled shareholders’ (in the Netherlands). The only remedy awarded in such cases in the Netherlands is the compulsory acquisition of the ‘strangled’ shareholder’s shares, while in England and Wales, this is the most awarded – but not only – remedy.
The rule against reflective loss has been subject to criticism from academics and legal scholars in both jurisdictions: in England and Wales, the criticism has revolved around the ever-expanding nature of the rule until the recent Supreme Court judgment in Marex, while in the Netherlands, academics have voiced concerns that the rule is too restrictive and have proposed a more pragmatic approach to the rule.
The rule against reflective loss was first explicitly set out by the Court of Appeal in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2)  Ch 204 and it provides that shareholders cannot bring a claim based on any fall in the value of their shares or distributions that is the consequence of loss sustained by the company in circumstances where the company has a cause of action against the same wrongdoer.
As to the rationale behind the rule, this was recently restated by the majority of the Supreme Court in Sevilleja v Marex Financial Ltd  UKSC 31. Lord Reed (who delivered the lead judgment) stated that the basis for the rule is that, where a shareholder has suffered a diminution in the value of its shares, or a reduction in the amount of distribution that it receives from the company, as a result of actionable damage caused to the company by a wrongdoer, English law does not recognise that the shareholder has suffered a loss that is separate and distinct from the loss suffered by the company itself. In that case, the only legitimate claimant is the company itself.
Lord Reed expressly rejected the proposition that the rationale for the reflective loss principle was premised on preventing double recovery; therefore, the approach adopted by previous authorities that had held that this was the case was misconceived. The rule is a ‘substantive rule of law’ and not ‘a procedural rule concerned only with the avoidance of double recovery’. Although double recovery is an issue to which the courts need to be alive, it can be addressed through several procedural or substantive means without relying on the reflective loss principle.
The rule against reflective loss in the Netherlands is the same as in England and Wales in that it prevents a shareholder from recovering a loss that is merely reflective of the company’s loss. Moreover, as is the case in England and Wales, if the company does not actually have a cause of action against the wrongdoer, then the rule against reflective loss would not operate in this case to bar the shareholders’ recovery and the usual rules on damages would apply.
However, the rationale behind the rule differs in the Netherlands, where the rule is based on considerations that include, but are not limited to, the following:
There are currently no exceptions to the rule against reflective loss in England and Wales. Prior to the Supreme Court’s decision in Sevilleja v Marex Financial Ltd  UKSC 31, the courts developed an exception to the rule, namely that there were certain special circumstances where a shareholder could recover loss, flowing from the company’s loss, where the company was unable (rather than unwilling) to pursue its cause of action.
The case of Giles v Rhind  EWCA Civ 1428 was the leading authority on this exception. In that case, Messrs Giles and Rhind were the directors of a food company and were parties, together with the company, to a shareholders’ agreement.
One of the terms of the shareholders’ agreement stated that the parties to it would not use confidential material relating to the company. Having resigned and sold his shares following a disagreement with Mr Giles, Mr Rhind breached the agreement and used confidential information to divert a contract from its former company to his new business. The company brought proceedings, but they were abandoned due to lack of finance. The company was placed in administrative receivership and was essentially rendered unable to pursue its claim for damages.
Mr Giles suffered losses as a result (eg, he lost the interest on loans he had made to the company). The duties allegedly breached by Mr Rhind were owed to the company, but they were also terms of the shareholders’ agreement to which Messrs Giles and Rhind were parties.
The Court of Appeal held that Mr Giles could pursue his claim for breach of the agreement, including damages for his loss being the diminution in the value of his shareholding, which would, in other circumstances, have been disallowed as reflective loss. The court determined that the rule against reflective loss should not apply in circumstances where a company is forced to abandon its claim by reason of impecuniosity attributable to the wrong that has been done to it, nor in any other instance where the wrongdoer has prevented the company from commencing legal proceedings.
However, the authorities giving rise to this exception were expressly overruled by the Supreme Court in Marex. It is now clear that ‘Giles v Rhind is dead for all intents and purposes on any straightforward interpretation of Marex’. The same would appear to be true of ingenious exceptions developed over the years to avoid the rule, such as by crafting relief to ensure awards were made for the benefit of the company and not the individual claimant shareholder.
The rule against reflective loss in the Netherlands is subject to an exception, which was first introduced by the Supreme Court in the case of Poot/ABP in 1994 and further developed by the Supreme Court in the case of Tuin Beheer/Houthoff in 2007. In particular, in Poot/ABP, the court explained that the rule is subject to an exception in cases where (even if the company has a cause of action against the wrongdoer), the wrongdoer has breached a specific duty of care owed to the shareholder. This exception was subsequently supplemented by the Supreme Court in Tuin Beheer/ Houthoff (Supreme Court 16 February 2007, NJ 2007, 256). The Supreme Court explained that a shareholder who wants to claim reflective loss must prove the existence of additional circumstances, for example, that the third party intended to harm that shareholder in particular.
No, the rule against reflective loss is not codified in England and Wales. The rule has been developed in English case law.
The rule against reflective loss is not codified in the Netherlands either. The rule has been developed by the judiciary.
The key recent decisions relating to the rule against reflective loss are: (1) the decision of the Supreme Court in Sevilleja v Marex  UKSC 31; (2) the decision of the Court of Appeal in Broadcasting Investment Group Ltd v Smith  EWCA Civ 912; (3) the decision of the Judicial Committee of the Privy Council in Primeo Fund v Bank of Bermuda (Cayman) Ltd & Anor (Cayman Islands)  UKPC 22; and (4) the decision of the High Court in Breeze v Chief Constable of Norfolk Constabulary  EWHC 942 (QB).
The above cases are important as, taken together, they confirm that:
The Supreme Court decision in Marex, in particular, has been instrumental with regard to clarifying the scope of the rule. In that case, Marex Financial Limited (‘Marex’) obtained a judgment from the English court against two companies incorporated in the British Virgin Islands (BVI) owned by Mr Sevilleja. Marex alleged that after the judgment was provided in draft, Mr Sevilleja took the opportunity to dishonestly asset-strip the BVI companies such that they would be unable to pay the judgment debt to Marex.
Subsequently, the BVI companies went into liquidation. Marex obtained permission to serve English proceedings on Mr Sevilleja out of the jurisdiction (under the tort gateway). Mr Sevilleja issued an application challenging the jurisdiction of the English Courts. At first instance, the High Court dismissed the jurisdiction challenge and rejected Mr Sevilleja’s argument that, even if Marex otherwise had a cause of action in tort, the reflective loss rule barred its ability to recover compensation. The case then went to the Court of Appeal, which allowed Mr Sevilleja’s appeal holding that Marex’s claim to recover the judgment debt, together with interest and costs, was found to be barred by the rule against reflective loss. According to the Court of Appeal, the rule would apply to creditors who were not shareholders of the company in the same way as it had been applied to shareholder creditors. This was the first time that the rule was held to apply to an individual who was purely a creditor of a company.
Marex then appealed to the Supreme Court. Lord Reed (delivering the lead judgment) made it clear that the principle did not apply to non-shareholder creditors. The principle applied only ‘where claims are brought by a shareholder in respect of loss which he has suffered in that capacity, in the form of a diminution in share value or in distributions, which is the consequence of loss sustained by the company, in respect of which the company has a cause of action against the same wrongdoer’, irrespective of whether the company in fact recovers its loss in full. The Supreme Court therefore allowed Marex’s appeal.
The key cases on the rule against reflective loss in the Netherlands are: (1) Supreme Court 2 December 1994, NJ 1995, 288 (Poot/ABP); (2) Supreme Court 16 February 2007, NJ 2007, 256 (Tuin Beheer/Houthoff); and (3) Supreme Court 12 October 2018, NJ 2021, 176 (Potplantenkwekerij).
The significance of the above cases is as follows:
In Potplantenkwekerij, a Dutch municipality took several administrative decisions, preventing a company and its sole shareholder from developing a piece of land. The shareholder (but not the company) successfully challenged these decisions in court, on the grounds that the decisions of the municipality were unlawful towards the shareholder. However, given that the company did not challenge the administrative decisions, those decisions came into effect. This meant that there was no unlawful act towards the company itself.
In follow-up proceedings, the holding company (ie, the corporate shareholder) claimed damages from the municipality, including in respect of the diminution of the value of shares in the company. The Supreme Court rejected the municipality’s reliance on the Poot/ABP rule against reflective loss. The court held that the rule did not apply in this case because there was no unlawful act in relation to the company. Therefore, given that the company did not have a cause of action on the facts of this case, the rule was not engaged.
For the avoidance of doubt and consistent with the approach under English law, the rule against reflective loss in the Netherlands does not apply to creditors who bring claims in their capacity as creditors (as confirmed in Tuin Beheer/Houthoff), but it may apply to former shareholders, as well as indirect shareholder of a company (see, eg, the decision in Poot/ABP).
Undoubtedly, there will be cases where the company fails to pursue a right of action which, in the opinion of a shareholder, ought to be pursued, or compromises its claim for an amount which, in the opinion of the shareholder, is less than its full value. In those cases, and provided that that opinion is shared by a shareholder majority, that majority may be able to force the company to act by passing an appropriate resolution at a general meeting.
If the shareholder is in a minority and ‘if (put shortly) those in control of the company are abusing their powers’, the minority shareholders also have rights under the usual company law protections. These protections are available in situations where, for example, the directors of a company have breached the duties imposed on them by sections 171–177 of the Companies Act 2006 (‘CA 2006’) or where the affairs of the company are being or have been conducted in a manner that is unfairly prejudicial to the interests of its shareholders generally or some part of its shareholders.
In particular, the main company law protections available to shareholders are:
However, if the company’s powers of management are not being abused and the majority of shareholders properly approve of the company’s decision not to pursue the claim or its decision to enter into a settlement, then the minority shareholder will not be able to pursue a personal action, as the rule against reflective loss would bar that action.
In the Netherlands, there is a statutory concept similar to the unfair prejudice petition in England and Wales, namely what is commonly known as the case of a ‘strangled shareholder’; the only remedy awarded in such a case under Dutch law is the compulsory acquisition of that shareholder’s shares. The test is whether a shareholder’s rights or interests are harmed in such a way that the shareholder can no longer reasonably be expected to continue to hold shares in the company (a ‘strangled shareholder’). The shareholder may file a claim against the majority shareholders and/or the company seeking the compulsory acquisition of the shareholder’s shares by the other shareholders at a value that is typically determined by court-appointed experts.
The test to assess whether the shareholder has been ‘strangled’ is an objective one: there is no need to show bad faith and/or an intention to cause prejudice on the part of the company or its majority shareholders. The usual cases in which a shareholder has succeeded in its claim have been those where: (1) the representative of the shareholder has been dismissed as a director of the company; (2) the directors have decided against declaring dividends, but at the same time have increased the directors’ salaries (unreasonably so); or (3) the company’s directors have transferred company assets at an undervalue, to related parties. In such cases, the strangled shareholder may claim the loss arising from the decrease in share value, pursuant to the actions of the company’s directors and/ or majority shareholders.
Aside from the ‘strangled shareholder’ scenario, shareholders may also be able to invoke their usual rights under Dutch law, depending on: (1) the percentage of their shareholding; and (2) the specific provisions in the company’s articles of association and/or shareholders’ agreement. For example, if the relevant shareholders hold the required number of shares, they could pass a shareholders’ resolution at a general meeting, instructing the company’s board to recover damage that was inflicted on the company, or even suspend or dismiss the relevant directors if they refuse to do so. Otherwise, the shareholders could make an application to court, seeking an order that the directors recover the loss or that the directors be replaced with interim directors who would then be in charge of recovering the relevant loss.
For the avoidance of doubt, it is not possible for the shareholders of a company to bring a derivative claim under Dutch law.
In England and Wales, ‘the whole concept of reflective loss has been controversial and subject to judicial ebb and flow in so far as its scope and ambit are concerned since its inception in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2).’ Indeed, prior to the Supreme Court decision in Marex, the expanding principle of reflective loss (and, in particular, subjecting non-shareholder creditors to the rule) had been compared to ‘some ghastly legal Japanese knotweed’, which promised to distort large areas of the ordinary law of obligations unless drastic steps were taken to prune it. Ultimately, in Marex, the majority were content to narrow the doctrine, whereas the minority advocated abolishing it. The recent decisions set out above have, however, clarified and defined the contours of the rule against reflective loss to a significant extent. Indeed, the Court of Appeal has recently rejected arguments that the law on reflective loss is too ‘uncertain and developing’ post-Marex. Nonetheless, given the range of novel fact patterns that could arise in the future, it may be that the application of the rule against reflective loss will be subject to further judicial fine-tuning.
The rule against reflective loss and case law relevant to this rule have been the subject of a lively academic debate among Dutch legal scholars in recent years. In particular, since the remedy of ordering the compulsory acquisition of a ‘strangled’ shareholder’s shares was introduced in Dutch law in 2012, it has been argued that Dutch law should take a more pragmatic approach to the rule, as opposed to the arguably strict approach that the Supreme Court has been applying since the decision in Poot/ABP. It has also been suggested that compensation for reflective loss should not be excluded a priori.
In line with the more pragmatic approach mentioned above, Dutch legal scholars, such as Professor Levinus (Vino) Timmerman, have argued that additional exceptions to the rule against reflective loss should apply in the following circumstances:
Whether any of the above proposed exceptions will be considered and developed in future Dutch case law remains to be seen. As highlighted by Dutch academics, there is certainly merit in considering a less restrictive approach insofar as the rule against reflective loss is concerned.
 See also Foss v Harbottle (1834) 2 Hare 461, which first formulated the principle that, where an actionable wrong has been done to a company, the company is the proper claimant to recover any loss resulting from such wrongdoing and not the company’s shareholders.
 See, eg, Johnson v Gore Wood & Co  2 AC 1.
 Breeze v Chief Constable of Norfolk Constabulary  EWHC 942 (QB), .
 See also Question 2, above.
 See also Question 1, above.
 This was clarified in the case of Primeo Fund v Bank of Bermuda (Cayman) Ltd & Anor (Cayman Islands)  UKPC 22. In that case, the question was whether the rule applied: (1) at the time of issuing the proceedings; or (2) at the time when ‘the claimant suffered loss arising from some relevant breach of obligation by the relevant wrongdoer’. The court held that the latter was the relevant time of assessment. In this case, the claimant was not a shareholder of the company at issue when the loss was suffered. Similarly, the loss suffered by the claimant in this case was not loss suffered in its capacity as shareholder of the company at issue. The position in Primeo has also been affirmed in the recent case of Burnford & Ors v Automobile Association Developments Ltd  EWCA Civ 1943 in the context of a strike-out/summary judgment application.
 As opposed to applying to an individual who was both a creditor and shareholder of a company, see Gardner v Parker  EWCA Civ 781.
 See the answer to Question 2.
 See the answer to Question 2.
 Sevilleja v Marex  UKSC 31,  per Lord Reed.
 See www.legislation.gov.uk/ukpga/2006/46/section/994 accessed 1 December 2022.
 See www.legislation.gov.uk/ukpga/2006/46/section/260 accessed 1 December 2022.
 See www.legislation.gov.uk/ukpga/1986/45/section/122 accessed 1 December 2022.
 Note that, under Dutch law, the company, its directors and its shareholders must act in accordance with the relevant standards of reasonableness and fairness. When one of these parties has acted unreasonably, this could lead to the disapplication of an otherwise binding provision incorporated, eg, in the company’s articles of association.
 Katherine Reece Thomas, Chris Ryan and David Baylis, The Law and Practice of Shareholders' Agreements (LexisNexis 2020), c 5 [5.107].
 Andrew Tettenborn, ‘Creditors and Reflective Loss: A Bar Too Far?’ (2019) 135 Law Quarterly Review 182.
 See the answer to Question 4.
 Burnford & Ors v Automobile Association Developments Ltd  EWCA Civ 1943, at para 33.
 See the answer to Question 5.
 See the answer to Question 1.