A company director has escaped a suspended sentence and an €85,000 VAT bill after a judge observed that he had been charged in his personal capacity and not as the director of the company which had incurred the substantial arrears.

Charles Le Brun was the director of Cleanwell Services Limited, which ran up an unpaid VAT bill of €85,112 in 2006.

In August 2006, the Commissioner for VAT had asked the Commissioner of Police to prosecute Le Brun as director of Cleanwell services over the €85,112 in unpaid VAT. Le Brun was interrogated by the police in February 2007 and subsequently prosecuted for misappropriation of the €85,112, being found guilty in 2017 and sentenced to 2 years suspended for 4, as well as being ordered to reimburse the taxman for the money he misappropriated.

Le Brun had filed an appeal, arguing amongst other things that the charges were time barred.

But the court of Criminal Appeal, presided by madam justice Consuelo Scerri Herrera, noted a fatal flaw in the case that neither of the parties had raised.

The case had been filed against Le Brun in his personal capacity and not, as per usual practise, also as the Director of Cleanwell Services Limited.

At law, limited liability companies enjoy separate legal personality from their owners and are treated as if an individual.

Although the letter to prosecute sent by the VAT department to the police had correctly specified Lebrun for and on behalf of Cleanwell Services Limited, the writ of summons did not. “The writ of summons is lacking in any indication that the appellant is being summoned to answer for a crime committed by Cleanwell Services Limited,” said the court.

Noting that the legislator intended the distinction between personal liability and vicarious liability in the case of a company director

The court said it was of the opinion that even if there was some form of misappropriation, no evidence had been brought to show that the misappropriation had been performed by the appellant in his own name and not that of his company. In view of this, it declined to examine the rest of the appeal, instead revoking the sentence handed to Le Brun, freeing him from all guilt and punishment.

Lawyer Stefano Filletti was counsel to Le Brun.