Soden v British and Commonwealth Holdings plc [1998] AC 298 is a UK insolvency law case, decided in the House of Lords. It decided that damages for negligent misrepresentation inducing purchase of company shares are not "sums due" to shareholders for the purpose of the Insolvency Act 1986, s 74(2)(f), so that a claim for such damages is not subordinated to claims from other creditors.
Facts
British and Commonwealth Holdings plc ("BCH") bought all the shares in Atlantic Computers plc ("AC") for £434m in 1988. Both went into administration. BCH brought an action against AC for negligent misrepresentation, which induced BCH to buy shares, and also against its advisors in the acquisition Barclays de Zoete Wedd Ltd. ("BZW") started proceedings against AC for contribution.
AC's administrator appealed against a Court of Appeal ruling, arguing that neither BZW's, nor BCH's claim would be subordinated to the claims of other creditors under s 74(2)(f) IA 1986.
Judgment
The House of Lords (Lord Browne-Wilkinson, Lloyd, Steyn, Hoffmann and Hope) dismissed the appeal. Sums due to a "member of the company (in his character as a member)" within s 74(2)(f) only extended to sums recoverable in actions based on the statutory contract between the members and the company under the Companies Act 1985 s 14(1) and did not include the type of damages sought by BCH. Lord Browne-Wilkinson gave the lead judgment.
{ { Cquote|My Lords, in 1988 British & Commonwealth Holdings Plc. purchased for some £434m. the whole of the share capital of Atlantic Computers Plc. The acquisition proved to be disastrous. Atlantic went into administration in 1990. The administrators of Atlantic are the appellants in your Lordships' House. B. & C. is also in administration. It has brought proceedings against, inter alia, Atlantic ("the main action") for damages for negligent misrepresentations said to have been made by Atlantic so as to induce B. & C. to acquire its shares. B. & C. has also brought proceedings against Barclays de Zoete Wedd Ltd. ("the B.Z.W. action") for damages for negligent advice given in relation to the acquisition of the Atlantic shares. B.Z.W. has issued third party proceedings against Atlantic for contribution and damages.
Quite apart from the claims in the main action and the B.Z.W. action, the liabilities of Atlantic greatly exceed its assets. On 30 March 1994 the court approved a scheme of arrangement to which B. & C. was not a party. It provided that, subject to the payment of preferential liabilities, the scheme assets should be distributed pari passu between the scheme creditors broadly on the same basis as if Atlantic were in liquidation.
Neither the main action nor the B.Z.W. action has yet come to trial. In these proceedings the administrators have applied to the court by originating summons for directions (a) whether the damages and costs recoverable by B. & C. and B.Z.W. if the actions succeed will be subordinated to the claims of the other creditors of Atlantic by virtue of being sums due to a "member of the company (in his character of a member)" within section 74(2)(f) of the Insolvency Act 1986 and (b) if so, whether the subordinated claims of B. & C. and B.Z.W. fall to be treated as scheme liabilities under the scheme of arrangement. In one sense, the originating summons raises hypothetical questions since, unless the main action and the B.Z.W. action succeed, the priority of those claims will not be a material factor. However, the courts below and your Lordships were satisfied that it is proper to decide these points at the present time. The claims in the main action and the B.Z.W. action, if successful, may give rise to enormous damages (in the region of £500m.). The status of the claims in these actions vis-à-vis the other creditors of Atlantic has an immediate and profound impact on the way in which the scheme of arrangement is now to be administered.