The claimants’ second argument was that Mr Ioannou was liable as an accessory to APP’s tort, namely the negligent advice provided by APP, in line with the principles laid down in Fish & Fish Ltd. Accessory Liability The Court of Appeal referred to the twostage analysis in Lifestyle Equities CV v Santa Monica Polo Club Ltd [2021] EWCA Civ 675. The first stage is to consider whether the individual defendant’s participation in the tortious conduct was sufficient to consider them liable as a joint tortfeasor. In adjudicating the first stage, the ordinary principles, as set out in Fish & Fish, must be satisfied: (1) the defendant must have assisted in the commission of an act by the primary tortfeasor; (2) the assistance must have been pursuant to a “common design” on the part of the defendant and the primary tortfeasor of the act to be committed; and (3) the act must constitute a tort as against the claimants. The second stage is to consider whether the individual defendant’s status as a director of the primary tortfeasor afforded him a defence. Lifestyle Equities confirms that an individual defendant may have a defence by virtue of their status as a director of the corporate defendant if the conduct amounts to no more than carrying out their constitutional role in the governance of the company. Similarly, in MCA Records Inc v Charly Records Inc [2001] EWCA Civ 1441 it was held that a director would not be treated as a joint tortfeasor if the conduct in question consisted of voting at board meetings. Applying the Two-Stage Test The Court of Appeal recognised that the question of “whether a director or senior manager should be personally liable as an accessory to the tort committed by the company is a fact sensitive question” that requires the “balancing of competing principles.” It was also noted that the scope for liability may differ according to the nature of the tort in question. The court also recognised that the principles of accessory liability should The Court of Appeal recognised that the question of “whether a director or senior manager should be personally liable as an accessory to the tort committed by the company is a fact sensitive question” 50 LAWYERMONTHLYOCTOBER 2022
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