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Uralkali v Rowley – do Administrators owe a personal duty of care?

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By Kevin Hawthorn, Giles Hindle and Christopher Wall


Published 21 July 2021


The Force India Formula 1 racing team entered administration in July 2018. There were a number of parties interested in acquiring either the shares or the business and assets. The joint Administrator had a lunch meeting with a representative of Racing Point, one of the interested parties. Uralkali, another interested party, alleged that confidential information about its bid was disclosed by the joint Administrator at that meeting.

A draft offer submitted by Racing Point referred to a fall-back offer of £70m to acquire the business and assets should the share purchase not prove possible (it being reliant on the consent of Indian banks). Uralkali’s offer for the business and assets was in the sum of £101.5m. Racing Point subsequently submitted an offer that was not marked draft but in which the sum offered was £90m. Racing Point’s offer was accepted.

Uralkali alleged that the Administrators failed to conduct a fair and proper sales process. In particular, alleged that:
  1. the Administrators negligently misrepresented on 2 August 2018 that they would select the successful bidder on the basis of the most favourable offer for the business and assets of the company (the "Rescue Offer Representations");
  2. the Administrators negligently misrepresented that the bidding process would be operated on a level playing field as between all bidders;
  3. the Administrators conducted the bid process negligently; and
  4. the Administrators breached an equitable duty of confidence by disclosing confidential information to Mr Stroll of Racing Point on 5 August 2018 relating to Uralkali's bid.
A reading of the judgment suggests that Uralkali did not assist itself by failing to call key witnesses without good reason. This, according to the Judge, left serious evidential gaps in assessing Uralkali’s evidence on certain matters.

The Judge found that the Administrators did not make the Rescue Offer Representations as allegded. That finding was fatal to Uralkali’s case on that issue.

In the event that he was wrong on that issue, the Judge went on to consider whether the Administrators owed Uralkali a personal duty of care but and held that they did not. The reasoning will be welcomed by office holders. There were a number of reasons referred to by the Judge. Those that will be of particular interest to office holders are:
  • the fact that administrators of companies are agents and do not therefore owe a duty of care in tort to particular creditors simply by virtue of their office, or by knowing that those creditors might be adversely affected by their actions, and that something more is required;
  • administrators are not to be taken to assume a personal responsibility to bidders by undertaking a sales process, without more, because it is an entirely routine function, and to the extent they are engaged in stimulating a sale of the company's assets, or promoting a rescue, they are acting as agents; and
  • the court should be very slow to impose on an administrator a duty of care which might fetter his discretion to make decisions in accordance with the statutory purposes of the administration under para 3 of Sch. B1; still less a duty that would operate to subvert the statutory purpose of the administration.
In relation to that last reason, the Judge explained that Administrators have a broad discretion in how to perform their functions, that they need to be adaptable quickly to events as they develop and that to impose a personal duty of care sounding in tort in cases such as that of Force India would severely constrain the ability of Administrators to perform their functions single-mindedly in the interests of creditors.