Wood and Another v Mistry: ChD 10 Jul 2012

A director’s disqualification order was sought. The order was sought on the basis of allegations of conduct as liquidator of several companies.

Judges:

Newey J

Citations:

[2012] EWHC 1899 (Ch)

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Citing:

CitedDeloitte and Touche Ag v Johnson and Another PC 10-Jun-1999
(Cayman Islands) The Board was asked whether a debtor or alleged debtor of a company in liquidation can apply for the removal of a liquidator, in whom the creditors and contributors of the company appear to have confidence, on the ground that he is . .
CitedIn Re Adbury Park Estates Ltd ChD 2003
A shareholder applied under section 4 of the 1986 Act for disqualification orders against the liquidators of a hopelessly insolvent company.
Held: The application was refused on two grounds: first, that the applicant had no standing to bring . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 23 May 2022; Ref: scu.462437

In Re Cameron’s Coalbrook and Co Railway Company, Ex Parte Bennett: 16 Mar 1854

Directors of a public companY are trustees for the shareholders, and their private interests must yield to their public duty whenever they are conflicting.
Directors permitted a class of dissentient shareholders in an embarrassed company to tranefer their shares to the company, under a power in the deed, upon payment of a sum of money, which it was arranged should be paid to one of the directors in discharge of a debt due from the Company. Held, that the transaction was void, and, on winding up the company, that the dissentients still remained shareholders.

Citations:

[1854] EngR 356, (1854) 18 Beav 339, (1854) 52 ER 134

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 22 May 2022; Ref: scu.293213

in re Pergamon Press Ltd: CA 1971

The court was asked as to the duties of inspectors appointed under the 1948 Act. Sachs LJ said: ‘The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates.’
Lord Denning MR set out the following statement of principle: ‘The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.’
and ‘They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings . . When they do make their report, the Board are bound to send a copy of it to the company; and the board may, in their discretion, publish it, if they think fit, to the public at large.
Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly . . before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him.’

Judges:

Lord Denning MR

Citations:

[1971] Ch 388, [1970] 3 WLR 792, [1970] 3 All ER 535

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Cited by:

CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedFinancial Conduct Authority v Macris SC 22-Mar-2017
The claimant had complained that the appellant Authority had made public a penalty imposed on a former employer but implicating him without he being first given an opportunity to make representations. . .
CitedLewin, Regina (on The Application of) v The Financial Reporting Council Ltd and Others Admn 19-Mar-2018
. .
CitedUK Innovative TI Ltd and Another v The Financial Conduct Authority UTTC 25-Apr-2018
FINANCIAL SERVICES – procedure – applicants contending they have third party rights in relation to a Supervisory Notice – whether Tribunal has jurisdiction in relation to the subject matter of the references-no-references struck out – Rule 8 (2) (a) . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 20 May 2022; Ref: scu.622608

Re Esal (Commodities) Ltd: CA 30 May 1988

The respondents were the liquidators of a company which the appellant bank climbed old substantial monies. The insolvent company had several subsidiaries and sub-subsidiaries, holding further assets. The respondent first sought an order requiring the production of certain documents to assist with the liquidation. Those orders were discharged after compromise agreements. The respondent then sought yet further disclosures, and the court made an order in very wide terms which would permit disclosure of any documents thought reasonably beneficial to the winding up, and those subsidiary or sub-subsidiary companies might in turn also disclose them if required to do so in other legal proceedings. The appellant now said that the order was too wide.
Held: The appeal failed. The wide power of disclosure was necessary to avoid the court becoming bogged down in the minutiae of constant squabbles over the relevance of particular documents.

Citations:

[1989] BCLC 59, Times 30-May-1988, 1988 PCC 443

Statutes:

Companies Act 1985 561

Jurisdiction:

England and Wales

Cited by:

See AlsoIn Re Esal (Commodities) Ltd CA 1989
. .
See AlsoRe Esal (Commodities) Ltd (No 2) ChD 1990
The company was wound up massively insolvent. The liquidators obtained orders for the private examination of an officer of the bank, who had undertaken an investigation into the bank’s relationship with the company before it’s liquidation. The bank . .
See AlsoRe Esal (Commodities) Ltd (No 2) CA 2-Jan-1990
the principal purpose of the powers to compel third parties to provide material to office-holders under sections 235, 236 and 366 is to assist with the beneficial winding up of the company or bankruptcy of the individual in question . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 20 May 2022; Ref: scu.622389

Brink’s Mat Ltd v Noye: CA 1991

The proceeds of the theft of gold bullion from a warehouse owned by the plaintiffs were laundered through the bank account of a company called Scadlynn Ltd with Barclays Bank. The directors and sole shareholders of Scadlynn were signatories of the account and drew cheques on it for cash totalling nearly andpound;8m over four months. The plaintiffs sought to enforce rights which Scadlynn was said to possess against the bank in consequence of the payments out of its account. The court was asked whether the pleading should be permitted, raising in turn the question, among others, whether it was open to Scadlynn to sue the bank in respect of withdrawals made or authorised by the company’s sole directors and shareholders.
Held: there was no reason why Scadlynn, which was being put into compulsory liquidation, should be prevented from enforcing such a claim for the benefit of the creditors who would look to the assets for the satisfaction of their debts.
Nicholls LJ described the existence of the directors’ fiduciary duties to the company as a means by which the law sought to protect the company’s creditors.
Mustill LJ rightly described Scadlyn as being an intended victim of arrangements intended dishonestly to deprive it of a large part of its assets and Nicholls LJ agreed with him.

Judges:

Mustill and Nicholls LJJ and Sir Roualeyn Cumming-Bruce

Citations:

[1991] 1 Bank LR 68

Jurisdiction:

England and Wales

Cited by:

CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.

Banking, Company

Updated: 20 May 2022; Ref: scu.566002

Stocznia Gdanska SA v Latreefers Inc; In re Latrefeers Inc; Stocznia Gdanska SA v Latvian Shipping Co and others (No 2): CA 15 Mar 2000

Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction would be likely to achieve a substantial benefit from such an action, and third was that some person responsible for distribution of the company’s assets was somebody over whom a UK court could exercise a jurisdiction.

Citations:

Times 15-Mar-2000, [2000] EWCA Civ 36, [2001] 2 BCLC 116

Links:

Bailii

Statutes:

Insolvency Act 1986 221

Jurisdiction:

England and Wales

Citing:

See AlsoStocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See AlsoStocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .

Cited by:

See AlsoStocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See AlsoStocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
CitedMcGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
See AlsoLatvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
See AlsoStocznia Gdanska Sa v Latvian Shipping Company and others CA 23-Jul-2002
Application for leave to appeal to the House of Lords refused. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Jurisdiction

Updated: 20 May 2022; Ref: scu.89567

Byng v London Life Association: CA 1990

The venue selected for a meeting of the members of a company was too small to accommodate all the members who attended, and so the chairman adjourned the meeting to an alternative venue.
Held: The decision by the chairman was set aside on the ground that, although acting good faith, he had failed to take into account relevant factors in the exercise of a discretion as chairman. The initial assembly of members was a meeting for the purposes of the Companies Act and the company’s articles of association, even though no business could be transacted because the members could not be adequately accommodated. The chairman had adjourned the meeting to a larger venue later in the day, without the consent or direction of those present. He had a residual common law power of adjournment, arising out of his duty to regulate proceedings so as to enable those attending to be heard and to vote. That power was not removed or restricted by the provision of the company’s articles, in circumstances where it was not possible to discover whether the meeting would agree to an adjournment and an urgent decision was needed.

Judges:

Browne-Wilkinson V-C, Mustill, Woolf LJJ

Citations:

[1990] 1 Ch 170

Jurisdiction:

England and Wales

Cited by:

CitedPitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
CitedPitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 20 May 2022; Ref: scu.402001

John Graham, On Behalf Of Himself And All Other The Shareholders Or Proprietors Of Shares In The Birkenhead, Lancashire, And Cheshire Junction Railway Company, Except Such As Are Defendants Hereto v The Birkenhead, Lancashire, And C: 30 May 1850

The directors of a railway company, with the concurrence of a majority of the shareholders, on finding the original undertaking impracticable, proceeded to construct a small portion only of the works. On an application by an individual shareholder on behalf of himself and the other shareholders for an injunction to restrain this proceeding, the Court refused to interfere on the ground of the acquiescence of the Plaintiff, and also that the other shareholders had for eighteeri months previously to filing the bill known, or had had the means of knowiiig, the Acts complained of.

Citations:

[1850] EngR 591, (1850) 2 Mac and G 146, (1850) 42 ER 57

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 20 May 2022; Ref: scu.297938

Dubai Bank Ltd v Galadari and Others (No 5): 25 Jun 1990

A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated.

Citations:

Times 25-Jun-1990

Jurisdiction:

England and Wales

Citing:

See AlsoDubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .

Cited by:

See AlsoDubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Lists of cited by and citing cases may be incomplete.

Company, International

Updated: 20 May 2022; Ref: scu.241345

Lonhro plc v Fayed: HL 28 Jun 1991

The parties had competed in bidding to acquire a public company. The plaintiff alleged that the defendant had used a fraudulent misrepresentation to the Secretary of State to achieve an advantage.
Held: To establish the tort of conspiracy to injure, it was sufficient that the conspirators intentionally caused injury to the plaintiff, and that they had used unlawful means to do so. It was not a defence to show that their predominant purpose was to protect their own interests.

Citations:

[1990] AC 479, Guardian 28-Jun-1991, [1991] 3 All ER 303

Jurisdiction:

England and Wales

Citing:

First InstanceLonhro plc v Fayed 19-Jul-1988
The plaintiff and defendant competed in bidding for a public company. The plaintiff having been restrained by the Secretary of State, alleged that the defendant had used a fraudulent misrepresentation to achieve this.
Held: It was not a tort . .
Appeal fromLonhro plc v Fayed CA 1990
The parties competed against each other in bidding for a public company. The plaintiff’s bid was referred to the Monopolies Commission, and they undertook to purchase no further shares. The defendant’s bid was not so referred, and the plaintiff . .

Cited by:

CitedOBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 19 May 2022; Ref: scu.223003

British-American Tobacco Company Ltd and R J Reynolds Industries Inc v Commission of the European Communities: ECJ 17 Nov 1987

Europa An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation. Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission’ s investigation, and the limits of such rights are reached where they begin to interfere with those companies’ rights to a fair hearing. The obligation of professional secrecy laid down in article 214 of the treaty and article 20*(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets. The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty. Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business. That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company. Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1) of the treaty are met, its review of the commission’ s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.

Citations:

Joined Cases 142 and 156/84, C-142/84

Jurisdiction:

European

Company, Judicial Review, Commercial

Updated: 19 May 2022; Ref: scu.133897

Director of Public Prosecutions v Gomez: HL 3 Dec 1992

The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of property belonging to another had taken place.
Held: An appropriation of goods sufficient to found a charge of theft may occurr when the consent to the act is obtained by a deception, and which deception results in the voidable transfer of ownership. Goods obtained by a deception might also be subject to a theft charge, because of the assumption of the rights of an owner.
Lord Browne-Wilkinson said: ‘ . . it would offend both common sense and justice to hold that the very control which enables such people to extract the company’s assets constitutes a defence to a charge of theft from the company. The question in each case must be whether the extraction of the property from the company was dishonest, not whether the alleged thief has consented to his own wrongdoing.’

Judges:

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Lowry (dissenting), Lord Browne-Wilkinson and Lord Slynn of Hadley

Citations:

Gazette 03-Mar-1993, Times 08-Dec-1992, [1993] AC 442, [1992] UKHL 4, [1993] 1 All ER 1

Links:

Hamlyn, Bailii

Statutes:

Theft Act 1968 1(1)

Citing:

ApprovedLawrence v Metropolitan Police Commissioner HL 30-Jun-1971
The defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of andpound;6 for a journey for which the correct lawful fare was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention . .
Appeal fromRegina v Gomez CACD 1991
The defendant was an assistant shop manager. He accepted two cheques which he knew to be stolen from a customer in exchange for goods, by persuading the manager that the cheques were valid. He was accused of theft of the goods. He answered that a . .
ApprovedAttorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
CitedBlack-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Explained and LimitedRegina v Morris (David); Anderton v Burnside HL 2-Jan-1983
The defendants had been accused of theft. One switched labels on a joint of pork in a supermarket, and the other presented the meat with the now cheaper label for purchase.
Held: The appeals were dismissed. There can be no conviction for theft . .
CitedDobson v General Accident Fire and Life Assurance Corporation Plc CA 1989
The plaintiff sought to claim under his household insurance. He sold some jewelry, accepting a building society cheque which turned out later to be stolen. He argued that his loss was ‘loss or damage caused by theft’ The insurer argued that there . .
CitedLewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
CitedPhillips v Brooks Ltd 1919
A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .
CitedRegina v Desmond HL 1965
The House analysed the authorities on the law of larceny and robbery, and declared its current state. While in earlier times robbery may have been limited to where there was actual violence, it became sufficient that there was ‘a putting in fear of . .
Wrongly decidedRegina v Fritschy CACD 1985
The defendant was instructed by the owner to collect a quantity of krugerrands in London and deliver them to a safe deposit in Switzerland. The defendant, having once collected the coins, took them to Switzerland and there made away with them. The . .
CitedRegina v Skipp CACD 1975
The defendant, presented himself as a contractor, and was instructed to collect and deliver consignments of goods from three different places. Having collected the goods he made off with them. He faced one count of theft in respect of the three . .
CitedRegina v Kassim HL 19-Jul-1991
The trial judge had held that a telex message requesting payment of andpound;960,000 had been ‘executed’ because it had been put into effect.
Held: A valuable security was not executed when the drawer’s bank acted upon the cheque, or request . .
CitedRegina v Philippou CA 1989
The defendants were sole directors and shareholders of their company. They appealed a conviction of theft from the company.
Held: The convictions stood. ‘Appropriates’ is to be given its ordinary English meaning, namely, ‘takes as one’s own or . .
CitedRegina v McHugh CACD 1988
In cases alleging corporate fraud it is necessary to look very carefully at the nature and limits of the authority before considering whether the questioned transaction is in truth a transaction authorised by the company. . .
DisapprovedRegina v Roffel 19-Dec-1984
(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The . .
CitedSalomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
CitedRegina v Shuck CACD 1992
The defendant was a company officer. He gave instructions to an innocent third party which resulted in the dishonest diversion of substantial sums of the company’s money. He appealed the judge’s interpretation of the word ‘appropriation.’
CitedWhitehorn Brothers v Davison CA 1911
It is for the defrauded owner seeking to recover his goods to prove that the purchaser had actual or constructive knowledge of the fraud. The passing of a good title to an innocent purchaser applied when the owner had been induced by false pretences . .
CitedTesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
CitedWimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .

Cited by:

ConfirmedRegina v Hinks HL 27-Oct-2000
A woman befriending an older man of limited intelligence accepted daily cash payments from his building society over eight months, claiming them to be gifts. She now appealed against her conviction for theft.
Held: (Lord Hutton dissenting) For . .
CitedWheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 19 May 2022; Ref: scu.86704

Regina v Chester and North Wales Legal Aid Area Office Ex Parte Floods of Queensbury Ltd: QBD 7 Nov 1997

It was possible for a body to apply for legal aid but only if it was genuinely acting in a fiduciary capacity as trustee, not mere contractual representative.

Citations:

Times 07-Nov-1997, [1997] EWHC Admin 883

Links:

Bailii

Statutes:

Legal Aid Act 1974 2(10), Legal Aid Act 1988 2(10)

Cited by:

Appeal fromRegina v Chester and North Wales Legal Aid Area Office (No 12) ex parte Floods of Queensferry Limited CA 18-Dec-1997
A company was not entitled to legal aid unless it was clearly acting in a fiduciary capacity; that the assignment of an action is invalid is insufficient to warrant a grant. . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Company

Updated: 19 May 2022; Ref: scu.86343

Practice Statement (Companies Court): ChD 19 Jan 2000

From January 2000, applications in company matters need not be heard only by a companies judge, and matters which had previously been listed on Mondays for this purpose need no longer be so listed. Urgent applications would also be dealt with by the applications judge.

Citations:

Times 19-Jan-2000

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 19 May 2022; Ref: scu.84999

National Westminster Bank Plc and Another v Inland Revenue Commissioners: HL 24 Jun 1994

Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES scheme.
Lord Templeman said: ‘The Act of 1985 preserves the distinction in English law between an enforceable contract for the issue of shares (which contract is constituted by an allotment) and the issue of shares which is completed by registration. Allotment confers a right to be registered. Registration confers title. Without registration, an applicant is not the holder of a share or a member of the company: the share has not been issued to him . . No person can be a shareholder until he is registered. A person who is not a shareholder by registration cannot claim that the share has been issued to him . .’ and
‘A person who has been allotted shares is in as good a position in equity as a person to whom shares have been issued but that does not mean that there is no distinction between allotment and issue’ and
‘. . The certificate declares to all the world that the person who is named in it is the registered holder of certain shares in the company and that the shares are paid up to the extent therein mentioned . . ‘
HL Income Tax – Reliefs – Business expansion scheme – Relief precluded for a scheme involving loan facilities where shares issued on or after 16 March 1993 – Applications for shares processed, cheques presented for payment, allotments made, and applicants notified by that date, but registration in companies registers of members taking place later – Whether shares issued before 16 March – Income and Corporation Taxes Act 1988, ss 289, 299A, 311(1) – Finance Act 1988, s 50.

Judges:

Lord Templeman, Lord Lloyd of Berwick

Citations:

Gazette 07-Sep-1994, Times 24-Jun-1994, Ind Summary 25-Jul-1994, [1994] 3 All ER 1, [1995] 1 AC 119, [1994] UKHL TC – 67 – 1

Links:

Bailii

Statutes:

Income and Corporation Taxes Act 1988 289 299A, Companies Act 1985 738

Jurisdiction:

England and Wales

Citing:

Appeal fromNational Westminster Bank Plc and Another v Inland Revenue Commissioners CA 10-Jan-1994
Shares in Business Expansion Scheme were not to be treated as issued until they were entered in the company’s share register. The scheme was ineffective being a scheme to avoid Income Tax by financial manipulation. . .
At First InstanceNational Westminster Bank Plc and Another and Barclays Bank Plc and Another v Inland Revenue Commissioners ChD 6-Aug-1993
A business expansion tax plan was valid if it was issued before the Income and Corporation Taxes Act. Shares were issued on the sending of the allotment letter, not when the shares came to be registered in the company’s books. . .

Cited by:

CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
CitedEckerle and Others v Wickeder Westfalenstahl Gmbh and Another ChD 23-Jan-2013
By acting together, two shareholders had first refused the proposed dividend, and replaced the board. They then acquired fiurther shares and achieved a majority of more than 75%, sufficient to pass a special resolution, and proposed the cancellation . .
CitedMichael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
Lists of cited by and citing cases may be incomplete.

Company, Income Tax, Income Tax

Updated: 19 May 2022; Ref: scu.84207

Khan and Another v Miah and Others: HL 7 Nov 2000

A partnership between a group intending to open a restaurant began when the parties joined together the find the premises, and fit it out. The partnership had come into existence even though they had not commenced trading by opening the restaurant. Two partners discovered that the land had been conveyed into the sole name of the third, and the relationships broke down.
Held: Whether a partnership had come into existence, and the property held on trust for the partnership was a question of fact. The question to be answered was whether they had actually embarked upon the venture which they had agreed. ‘The various provisions of the Act which contain the terms to be implied into a partnership unless otherwise agreed are not statutory presumptions but default provisions. Very slight evidence is needed to exclude them.’ Appeal allowed.
Lord Millett said: ‘Whether parties who propose entering into a business venture in partnership together have actually done so is a question of fact into which your Lordships would not normally enter. But the majority of the Court of Appeal did not reverse the judge’s findings of fact. They reversed his conclusions because they considered that there was a rule of law that the parties to a joint venture do not become partners until actual trading commences. They recognised the distinction between a contemplated partnership or an agreement to become partners and the partnership itself. They considered that it was necessary first to identify the business that it was intended or agreed should be conducted by the partnership, and then decide whether that business was being carried on by the partners at the material time. They identified the business of the partnership as the carrying on of a restaurant business from the premises in Newbury, and posed the question, at p 486H: ‘were the four parties . . carrying on a restaurant business at [the premises] prior to 25 January 1994?’. So expressed, the question could only be answered in one way. The restaurant was not open for business. There was nothing for the first defendant to manage, and no function for the two chefs to perform. No food had been bought or bookings taken. Everything that had been done was preparatory to the commencement of trading.
. . There is no rule of law that the parties to a joint venture do not become partners until actual trading commences. The rule is that persons who agree to carry on a business activity as a joint venture do not become partners until they actually embark on the activity in question. It is necessary to identify the venture in order to decide whether the parties have actually embarked upon it, but it is not necessary to attach any particular name to it. Any commercial activity which is capable of being carried on by an individual is capable of being carried on in partnership. Many businesses require a great deal of expenditure to be incurred before trading commences. Films, for example, are commonly (for tax reasons) produced by limited partnerships. The making of a film is a business activity, at least if it is genuinely conducted with a view of profit. But the film rights have to be bought, the script commissioned, locations found, the director, actors and cameramen engaged, and the studio hired, long before the cameras start to roll.
The work of finding, acquiring and fitting out a shop or restaurant begins long before the premises are open for business and the first customers walk through the door. Such work is undertaken with a view of profit, and may be undertaken as well by partners as by a sole trader.
The question in the present case is not whether the parties ‘had so far advanced towards the establishment of a restaurant as properly to be described as having entered upon the trade of running a restaurant’, for it does not matter how the enterprise should properly be described. The question is whether they had actually embarked upon the venture on which they had agreed. The mutual rights and obligations of the parties do not depend on whether their relationship broke up the day before or the day after they opened the restaurant, but on whether it broke up before or after they actually transacted any business of the joint venture. The question is not whether the restaurant had commenced trading, but whether the parties had done enough to be found to have commenced the joint enterprise in which they had agreed to engage. Once the judge found that the assets had been acquired, the liabilities incurred and the expenditure laid out in the course of the joint venture and with the authority of all parties, the conclusion inevitably followed.’

Judges:

Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 07-Nov-2000, Gazette 23-Nov-2000, [2000] UKHL 55, [2000] 1 WLR 2123, [2001] 1 All ER 20, [2001] 1 All ER (Comm) 282, [2000] All ER (D) 1647

Links:

House of Lords, Bailii

Citing:

Appeal fromKhan and others v Miah and others CA 3-Dec-1997
An agreement to set up a business, which went as far as including some preparatory acts, was not a partnership until there was some actual trading. Whether a partnership had come into existence was a question of fact in the particular circumstances. . .
CitedBirmingham and District Cattle By-Products Co Ltd v Inland Revenue Commissioners 1919
A company had not completed a full trade year before the outbreak of the First World War was required to obtain tax relief. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 19 May 2022; Ref: scu.82757

In Re White (Dennis) Deceased; White v Minnis and Another: CA 25 May 2000

A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that shares would be bought and sold at market value. The deceased partner could have been obliged to sign the accounts, in accordance with partnership practice, using that value, and so the historic cost was to be used not the market value.

Judges:

Chadwick LJ

Citations:

Gazette 25-May-2000, Times 10-May-2000, [2000] EWCA Civ 149

Links:

Bailii

Statutes:

Partnership Act 1890 27 32 33 39

Jurisdiction:

England and Wales

Citing:

CitedNoble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
Appeal fromWhite v Minnis and Another ChD 18-Jan-1999
On the dissolution of a partnership, the valuation of assets was to be in accordance with the partnership deed but in the absence of explicit guidance property was to be valued at the date of dissolution and not at an historic value used in . .
CitedCoventry v Barclay 1863
Partners had conducted their practice over many years in a manner inconsistent with the spirit if not the exact letter of their partnership articles. Stock was to be taken every year, and the value entered into the books to be signed off by each . .
CitedPilling v Pilling 1865
. .
CitedHunter v Dowling CA 1893
The articles of partnership between the parties required an annual account. A retiring or deceased partner was to be paid out ‘at the amount standing to his credit in the last balance sheet which shall have been signed previously to the date of such . .
CitedThom’s Executrix v Russel and Aitken 1983
The court was asked as to how the value of the interest of a deceased partner was to be calculated.
Held: There had been prior dealings at book value as between the partners, and the payment of the deceased partner’s share was restricted to . .
CitedCruikshank v Sutherland HL 1923
The executors of a deceased partner of the respondents sought relief. The assets had been taken over from an earlier partnership between the parties and had been brought into the accounts of the new partnership at the values at which they had stood . .
CitedNoble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
CitedShaw v Shaw OHCS 1968
‘The authorities to which I was referred, including, in particular, Noble v Noble; Inner House, 28th January 1966 (unreported), and Cruickshank’s Trustees v Sutherland, satisfy me that, as a general principle, where in a partnership it is necessary . .
CitedClark v Watson 1982
Two dentists practised in partnership. The co-partner said that on the death of one, to his estate should be paid ‘the Capital standing to the credit of the deceased Partner in the Accounts of the Partnership’. The court was asked whether that . .
UnpersuasiveWilson v Dunbar Bank plc OHCS 1988
An agreement to the insertion of book values in a balance sheet prepared during the continuance of the partnership did not bind the deceased partner if that balance sheet fell to be used for the purpose of the ascertainment his share in the . .
CitedAttorney-General v Boden 1912
There was a partnership between a father and his two sons. The sons were obliged to devote their whole time to the practice, the father only so much time as he wished. On his death the sons were to pay out to his estate the value of the capital but . .
Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate

Updated: 19 May 2022; Ref: scu.82291

Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) (No 2): HL 18 Nov 1999

Where a group of companies sought consortium group relief, but the majority of the companies within the group were based outside the European Union, the court need not apply European Union standards to the test, but could instead apply the standards appropriate to the UK, and accordingly refuse the relief.

Citations:

Times 24-Nov-1999, Gazette 01-Dec-1999, [1999] 1 WLR 2035, [1999] UKHL 48, [1999] UKHL TC – 72 – 1

Links:

House of Lords, House of Lords, House of Lords, Bailii, Bailii

Statutes:

Income and Corporation Taxes Act 1988 258 (5) (b)

Citing:

At ECJImperial Chemical Industries v Colmer ECJ 16-Jul-1998
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .

Cited by:

CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedFoulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, European, Company

Updated: 19 May 2022; Ref: scu.81594

Don King Productions Inc v Warren and Others: ChD 13 Apr 1998

Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence of an obligation binding the conscience of the person vested with the legal ownership is the hallmark of a trust.’ and ‘in principle I can see no objection to a party to contracts involving skill and confidence or containing non-assignment provisions from becoming trustee of the benefit of being the contracting party as well as the benefit of the rights conferred. I can see no reason why the law should limit the parties’ freedom of contract to creating trusts of the fruits of such contracts received by the assignor or to creating an accounting relationship between the parties in respect of the fruits.’

Judges:

Lightman J

Citations:

Times 13-Apr-1998, Gazette 13-May-1998, [2000] Ch 291, [1998] 2 All ER 608

Citing:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
CitedVandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
CitedTarget Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .

Cited by:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Appeal fromDon King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 19 May 2022; Ref: scu.80091

Dubai Aluminium Company Ltd v Salaam and Others: QBD 17 Jul 1998

A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later claim.

Judges:

Rix J

Citations:

Times 04-Sep-1998, [1998] EWHC 1204 (Comm), [1999] 1 Lloyd’s Rep 415

Links:

Bailii

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

Appeal fromDubai Aluminium Company Limited v Salaam and others CA 7-Apr-2000
The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who . .
At First InstanceDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
See AlsoDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Company, Legal Professions, Torts – Other

Updated: 19 May 2022; Ref: scu.80148

Connolly v Sellers Arenascene Ltd: CA 2 Feb 2001

The fact that a director held a majority shareholding in a company was not enough of itself to say he was not an employee. It is an important factor, but the tribunal must look at all the factors. The tribunal having decided that the director’s service agreement was not a sham, it was inevitable they should conclude he was an employee, and had the right not to be unfairly dismissed.

Citations:

Times 08-Mar-2001, Gazette 22-Feb-2001, [2001] EWCA Civ 184

Links:

Bailii

Statutes:

Employment Rights Act 1996 230

Jurisdiction:

England and Wales

Citing:

Appeal fromConnolly v Sellers Arenascene Ltd EAT 14-Sep-1999
EAT Contract of Employment – Breach of Contract . .
Lists of cited by and citing cases may be incomplete.

Employment, Company, Insolvency

Updated: 19 May 2022; Ref: scu.79451

Coutts and Co v Stock: ChD 24 Nov 1999

Where an ailing company continued to trade, section 127 operated as between the company and its directors and creditors, and not so as to invalidate payments made by the company’s bank on cheques drawn before the date of presentation of the petition, and honoured before the date of the winding up order. Accordingly when an overdraft arose as a result of such payments, a person guaranteeing the company’s overdraft remained liable for the result.
The acts of a Bank in honouring cheques drawn on an insolvent company’s overdrawn account were a loan by the Bank to the company, but not a disposition of the company’s property. Section 127 ‘does not invalidate a company’s assumption of liabilities’.

Judges:

Lightman J

Citations:

Times 30-Nov-1999, Gazette 17-Dec-1999, [1999] EWHC Ch 191, [2000] 1 WLR 906

Links:

Bailii

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Company, Insolvency, Banking

Updated: 19 May 2022; Ref: scu.79572

Cheah Theam Swee v Equitcorp Finance Group Ltd and Another: PC 5 Nov 1991

(New Zealand) A had given two charges over his shares to different lenders. The charges came to be both owned by the same person, who obtained judgment under the first charge, but then exercised its power of sale under the second, waiving its priority under the first. The chargor complained that the chargee should have exercised his power under the first charge which would have discharged the judgment.
Held: Owners of different mortgagees of a property can agree to alter the priority of their respective charges irrespective of the wishes of the chargor, and without needing his consent. The mortgagor had no control over which remedy was taken by the chargees.

Citations:

Gazette 08-Jan-1992, [1991] 4 All ER 989, [1991] UKPC 39

Links:

Bailii

Citing:

DistinguishedPalmer v Hendrie 1859
. .
See AlsoCheah Theam Swee v Equiticorp Finance Group Ltd. And, Equiticorp Nominees Ltd PC 12-Jul-1989
New Zealand . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Commonwealth

Updated: 19 May 2022; Ref: scu.78999

Browell and Others v Goodyear: ChD 24 Oct 2000

When a partnership of solicitors was dissolved, the main asset was the work in progress comprised in substantial personal injury litigation being conducted, in effect, on a conditional fee basis. The question arose of how it could be valued. The court discarded foreign judgments which gave nil value to such assets for taxation purposes, and also the ‘realisation’ basis sometimes used in Britain. Instead the court had to assess the proportion of work which might prove successful, and to establish what proportion of the work had already been concluded, making allowance for the need for simplicity of calculation, the necessary inexactitude, and giving the benefit of any doubt to those who might complete the work.

Citations:

Times 24-Oct-2000

Company, Legal Professions

Updated: 18 May 2022; Ref: scu.78685

Barings Plc and Another v Coopers and Lybrand (A Firm) and Others: ChD 13 Aug 1996

The need to reach one conclusion justified service of proceedings overseas on a firm’s partners, where there was a genuine issue to be decided

Citations:

Times 13-Aug-1996, Gazette 23-Oct-1996, [1996] EWCA Civ 1025

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromBarings Plc and Another v Coopers and Lybrand (A Firm) and Others CA 6-Dec-1996
Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue. . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 18 May 2022; Ref: scu.78229

Attorney-General’s Reference (No 2 of 1999): CACD 29 Feb 2000

A conviction for manslaughter by gross negligence did not require proof of a defendant’s state of mind. Nevertheless such evidence might well be useful in other ways. A body corporate could be guilty of manslaughter by gross negligence, but only if at least one identified individual was shown to be guilty of the same crime. Corporate manslaughter did not require evidence of the state of mind of the corporation, but somebody no doubt within the corporation must also be identified as responsible in law.

Judges:

Rose LJ

Citations:

Times 29-Feb-2000, Gazette 02-Mar-2000, [2000] QB 796

Cited by:

CitedRegina on the Application of Rowley v Director of Public Prosecutions QBD 4-Apr-2003
The applicant sought to challenge a decision not to prosecute a third party following the death of her son. He had been in care, having multiple disabilities, including epilepsy. He drowned whilst in a bath. It had been recognised that he needed . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 18 May 2022; Ref: scu.78005

Gray v Raper: CCP 1866

The defendants had given promissory notes to a friendly society, which came to be dissolved. An action was brought for recovery of the debts, but without the necessary permission first.
Held: The failure was not one to be taken advantage of in the plea to the further maintenane of the action, but only, and if at all, by making application to the court having in hand the winding up of the company.

Citations:

(1866) LR 1CP 694

Statutes:

Companies Act 1862

Cited by:

CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 May 2022; Ref: scu.567256

Regina v Lord Mayor of London; Ex parte Boaler: QBD 1893

Boaler had brought unsuccessful proceedings in the Lord Mayor’s Court against a company, and was ordered to pay its costs. When he failed to pay them, an order of commitment was made against him. He applied for certiorari, alleging, inter alia, that the proceedings had been brought against the company without leave, when it was in liquidation, and that therefore all the proceedings, including the order of commitment, were invalid.
Held: The argument of want of jurisdiction was expressly negatived The absence of a required consent to an action did not where the defect could be cured.
Wright J said: ‘Another point which the applicant made was this. The company in question was in liquidation, and he says that the proceedings could not be continued. That affords no ground for granting a certiorari. It was a bad plea at common law that a compulsory winding up was in progress. The provision applicable to such a case is s87 of the Companies Act 1862 (25 and 26 Vict. c. 89), by which, ‘When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court may impose.’ That section has always in practice been worked out by applying to stay the proceedings, and further it does not apply to the case of a voluntary liquidation, the provisions applicable to which are contained in s138, and under that section the stay is discretionary. A certiorari can only issue where there is a want of jurisdiction.’

Judges:

Wright J

Citations:

[1893] 2 QB 146

Jurisdiction:

England and Wales

Cited by:

CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 18 May 2022; Ref: scu.567274

Farrer v Beswick: 1836

Baron Parke said: ‘I have always understood, until the doubt was raised in Barton v. Williams, that one joint-tenant or tenant in common of a chattel could not be guilty of a conversion by a sale of that chattel, unless it were sold in such a manner as to deprive his partner of his interest in it. A sale in market overt would have that effect.’

Judges:

Baron Parke

Citations:

1836 Meeson and Welsby’s Reports 682

Cited by:

CitedRegina v Bonner and Others CACD 24-Feb-1970
The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 18 May 2022; Ref: scu.566424

Regina v ICR Haulage Ltd: KBD 1944

A company can be guilty of conspiracy, in this case to defraud. Both the managing director and, through him, the haulage company were convicted of conspiracy to defraud. His acts ‘were the acts of the company and the fraud of that person was the fraud of the company’.
‘Where the only punishment which the court can impose is death, for this purpose the basis of this exception is being that the court will not stultify itself by embarking on a trial in which, if the verdict of guilt is returned, no effective order by way of sentence can be made.’

Citations:

[1944] KB 551, [1944] 1 All ER 691

Cited by:

CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.

Company, Crime

Updated: 18 May 2022; Ref: scu.565998

Moore v I Bresler Ltd: KBD 1944

The company had been required to make a return for revenue purposes (purchase tax) and the statute made it an offence to make a false return with intent to deceive. The company was charged with such, but responded that the action was of employees .
Held: The mens rea of the servant authorised to discharge the duty to make the return should be attributed to the company. The Court focussed on the question whether the officers were acting within the scope of their authority and concluded that they were, notwithstanding that the purpose of the dishonest purchase tax returns was to conceal the defendant’s own theft from the company.
Viscount Caldecott LCJ described the officers as important officials of the company
Humphreys J said that it was difficult to imagine two persons whose acts would ‘more effectively bind the company’ and who could be said to be more obviously agents of the company

Judges:

Humphreys J, Viscount Caldecott LCJ

Citations:

[1944] 2 All ER 515

Cited by:

CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 May 2022; Ref: scu.565996

Cornhill Insurance plc v Improvement Services Ltd: 1986

Held: Where a company was under an undisputed obligation to pay a specific sum and failed to do so, it could be inferred that it was unable to do so; that accordingly, the defendants could properly swear to their belief in the plaintiff company’s insolvency and present a petition for its winding up.
Harman J said: ‘That appears to me to be sound reason and sound law. I re-enforce it by reference to a decision in Re a Company 1950 (94) SOL J 369 Visey J in the matter in which counsel of the utmost distinction in Chancery at that time both leading and junior counsel appeared said that where a Company was well known and wealthy it was the more likely the delay in settlement of its obligation would create suspicion of its financial embarrassment.’ ‘Rich man and rich companies which did not pay their debts had only themselves to blame if it were thought that they could not pay them.’

Judges:

Harman J

Citations:

[1986] 1 WLR 1, [1986] BCLC 26

Citing:

CitedMann v Goldstein ChD 1968
Ungoed-Thomas J said: ‘When the creditor’s debt is clearly established it seems to me to follow that this court would not, in general at any rate, interfere even through the company would appear to be solvent, for the creditor would as such be . .

Cited by:

CitedBNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 18 May 2022; Ref: scu.535113

Re Autotech Design Ltd, HMRC v Autotech Design Ltd: ChD 2006

Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to be adopted by the Court differ slightly, their effect is substantially the same and is as follows:
(1) These are not disputed debt cases. This is because the excise duty, and here the VAT, is due as provided for in the relevant assessment notwithstanding a pending appeal.
(2) Nonetheless the question whether the appeal has a real prospect of success or (which is the same thing) whether the debt created by the assessment is bona fide disputed on substantial grounds, is of central importance to the discretion whether to make a winding up order. In that respect Sir Andrew Morritt in the Arena case in the Court of Appeal said this at para.52:
‘If there is a real doubt as to the propriety of the assessments then the issue should be resolved by the tribunal not only because the tribunal is the forum prescribed by Parliament but also because it is not the function of the Companies Court in the exercise of its winding up jurisdiction to adjudicate in respect of a genuinely disputed debt. By contrast, a company which is unable to pay its debts is not to be permitted to delay its winding up by advancing spurious excuses for non payment of the petitioner’s debt’.
(3) Even if the material before the Companies Court does not lead to an affirmative answer to that question there is still a discretion to adjourn or even to dismiss the petition. Prominent in that analysis will be the question whether the company has had a fair opportunity to understand and to answer Customs’ case and to challenge the propriety of the assessment, and again I read from the judgment of Sir Andrew Morritt in Arena in the Court of Appeal at para.92:
‘In circumstances such as these it is essential that the procedure is fair. I understand that there is no prescribed form of assessment and no complaint was made about the form used in this case. Nevertheless it is important that the Commissioners should specify either in the assessment or a letter accompanying it what irregularity they rely on and the facts said to support the contention that the person assessed caused it. This would enable a person in receipt of such an assessment to challenge its propriety. If no such information is given, and the person assessed merely appeals, then the onus is on him to disprove causation without knowing what he is alleged to have caused. This could be oppressive, the more so as he is required to pay the assessed duty before appealing unless the Commissioners agree or the tribunal orders otherwise’.
Anglo Overseas would have been a case for the exercise of a discretion to dismiss or adjourn the petition rather than to make a winding up order had not Mr. Justice Lewison already concluded that there was a real prospect of success on appeal against the assessment.
(4) The Companies Court will not readily or lightly reject without cross-examination evidence tendered by the company in support of an allegation that it has a real prospect of success on appeal. The procedure for hearing of winding up petitions is not appropriate for the weighing of the relative strength or credibility of competing evidence. Furthermore, in cases such as the present, Customs has the additional burden of proving a serious fraud.
(5) But there may be cases, and Arena was confirmed, after some hesitation, in the Court of Appeal to be just such a case, where the company’s case is so completely at variance with the documents, or internally inconsistent, as to be capable of being branded ‘incredible’ without any form of trial. Alternatively, it may be possible for the Companies Court to see (as it did in Arena) that it will simply be impossible for the company to advance any case on appeal with any real credibility.’

Judges:

Michael Briggs QC

Citations:

[2006] EWHC 1596 (Ch)

Jurisdiction:

England and Wales

Citing:

CitedCommissioners of Customs and Excise v Anglo German Breweries Limited ChD 29-Nov-2002
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was . .
CitedThe Commissioners for Customs and Excise, The Arena Corporation Limited v The Arena Corporation Limited / Schroeder ChD 12-Dec-2003
. .
CitedCustoms and Excise v Anglo Overseas Ltd ChD 5-Oct-2004
. .
CitedIn re The Arena Corporation Limited; Commissioners for Customs and Excise v The Arena Corporation Limited; the Arena Corporation Limited v Schroeder CA 25-Mar-2004
Sir Andrew Morritt V-C said that in the context of winding up proceedings the test for whether there is a genuine triable issue in a disputed claim, is whether the debt is bona fide disputed on substantial grounds, which, for practical purposes, is . .
CitedHM Customs and Excise v Jack Baars Wholesale, Baars, and Baars CmpC 16-Jan-2004
. .

Cited by:

CitedRevenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 18 May 2022; Ref: scu.510893

Bank of Tokyo Ltd v Karoon (Note): 1986

Robert Goff LJ considering a request for an anti-suit ijunction, said: ‘foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceeding’. He went on to say: ‘Counsel suggested beguilingly that it would be technical for us to distinguish between parent and subsidiary company in this context; economically, he said, they were one. But we are concerned not with economics but with law. The distinction between the two is, in law, fundamental and cannot here be bridged.’

Judges:

Robert Goff LJ

Citations:

[1987] AC 45, [1986] 3 All ER 468, [1986] 3 WLR 414

Cited by:

CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 May 2022; Ref: scu.519364

Faulks v Faulks: ChD 1992

One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad become a partnership asset. The surviving brother now appealed against the arbitrator’s finding that it was not.
Held: The appeal failed. The quota, though registered in the name of the partnership, could not be separated from the land to which it was attached. It would not have been available on a dissoultion of the partnership under the 1890 Act to meet the creditors of the partnership.

Judges:

Chadwick J

Citations:

[1992] 1 EGLR 9

Statutes:

Partnership Act 1890

Jurisdiction:

England and Wales

Citing:

CitedSmith v Mules 17-Feb-1852
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them . .
CitedAmbler v Bolton CA 1872
An inalienable government contract held by one of the partners constituted a partnership asset. On the dissolution of the partnership, a value had to be given to it (since it could not be sold) and the partner who held it debited with that amount in . .
CitedPawsey v Armstrong ChD 1881
In the absence of agreement to the contrary, if there is goodwill attached to a business, it must on a dissolution, be sold for the benefit of all partners. The court ordered ‘An account of all dealings and transactions between the Plt and Deft as . .
CitedWachauf v Bundesamt Fur Ernahrung und Forstwirtschaft ECJ 13-Jul-1989
ECJ 1. The term ‘holding’ in Article 12(d) of Council Regulation No 857/84 relating to the application of the additional levy on milk covers all the agricultural production units which are the subject of a lease, . .

Cited by:

AppliedDavies v H and E Ecroyd Ltd ChD 1996
The partnership was made up of a 109 acre dairy holding owned by one partner, and the second partner managed the business. The dairy holding itself was kept out of the partnership assets by explicit agreement. D, the former manager claimed, on the . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Company

Updated: 18 May 2022; Ref: scu.458598

Balston Ltd v Headline Filters Ltd and Another: ChD 1990

The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which the company had informed them of an impending price increase and that supplies would be discontinued. The defendant told the customer that he was leaving, and said he would be able to supply them himself. He began to prepare his business, buying in stock and taking on former and current employees of the claimant. The claimant now alleged breach of his fiduciary duties as director, of acting in conflict of interest, and of his duties of faithfulness as an employee.
Held: The mere intention to set up a competing business whilst employed as a director was not a breach of fiduciary duty, and nor did he have a duty to disclose that intention. Though general preparation were not a breach of his duty of fidelity as an employee, the taking of an order from a customer, and the taking on of an employee did each amount to such a breach.
There was no misues of confidential information. Although the new business used similar fibre mixes, the defendant’s own skill could account for his preparation of them without misuse of the claimant’s confidential information.
Falconer J said: ‘In my judgment an intention by a director of a company to set up business in competition with the company after his directorship has ceased is not to be regarded as a conflicting interest within the context of the principle, having regard to the rules of public policy as to restraint of trade, nor is the taking of preliminary steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he remains a director.’

Judges:

Falconer J

Citations:

[1990] FSR 385

Jurisdiction:

England and Wales

Citing:

CitedRobb v Green 1895
An employee intending to enter business for himself may prepare for that step, provided he does not breach terms of his contract of employment or breach the confidence reposed in him by his employers. The duty may be breached by an employee . .
CitedBell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
See AlsoBalston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .
CitedIsland Export Finance v Umunna ChD 1986
The defendant director had resigned from the plaintiff company from dissatisfaction with its progress. He later received an order from the company’s former customer. The court considered the continuing duties of a company director after the . .

Cited by:

CitedHelmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
CitedWhitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Lists of cited by and citing cases may be incomplete.

Employment, Company

Updated: 18 May 2022; Ref: scu.442530

In re Standard Manufacturing Co: CA 1891

Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: ‘Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors.’
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as ‘secret documents’.
The court concluded: ‘mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878.’

Citations:

[1891] 1 Ch 627

Statutes:

Bills of Sales Act (1878) Amendment Act 1882, Bills of Sales Act 1878, Bills of Sale Act 1854, Companies Act 1862, Companies Clauses Act 1845

Citing:

AppliedRead v Joannon 1890
The court considered the application of the 1878 Act.
Held: Where there are a series of Acts dealing with a topic and with similar names, the words ‘this Act’ in expressions such as ‘in this Act’ or ‘under this Act’ must be construed to mean . .

Cited by:

CitedClark v Balm, Hill and Co 1908
A company registered in Guernsey issued debentures creating floating charges over real and personal property in England. The court was asked whether the debentures ought to be deemed to be within the Bills of Sales Acts and so ought to have been . .
CitedOnline Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
DistinguishedGreat Northern Railway Co v Cole Co-Operative Society 1896
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally . .
CitedN V Slavenburg’s Bank v Intercontinental Natural Resources Ltd ChD 1980
The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 18 May 2022; Ref: scu.414890

The Agricultural Cattle Insurance Company v Sir John Foster Fitzgerald, Knight: 1851

In an action of debt for calls by a company formed under sta 7 and 8 Vict chapter 110 ; pleas nunquam indebitatus, and that the company was not completely registered : issues thereon : it is not indispensable that the plaintiffs should produce their certificate of registration, but the registering may be proved aliunde ; the certificate itself not being in issue. If, in such an action, the company’s deed of settlement be produced in evidence to prove the defendant a shareholder, and therefore liable under section 55 of the act, the deed is available for this purpose, though it appears that, since execution, the name of a shareholder, subscribed before that if the defendant, has been erased, and the erasure be not accounted for.

Citations:

[1851] EngR 76, (1851) 16 QB 432, (1851) 117 ER 944

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 18 May 2022; Ref: scu.296392

The Bank of Australasia v Harding: 1850

The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of thc country in which the business is carried on accordingly. – A statute authorising an unincorporated company to sue and to be sued the name of its chairman, constitutes the chairman, when so suing or so sued, an agent for the members of the company in the aflairs of the company. – The members of a company formed for the purpose of carrying on business in a colony, are not discharged from liability on judgments obtained in the colony against the chairman, by reason of their having been resident in England, not being served with process, and having received no notice of the proceedings. – Where a statute subjects the property of members for the time being of an unincorporated company, to execution upon a judgment obtained against their chairman, reserving in other respects the liabilities of parties, the remedies given against the property are in cumulation, and a member may be proceeded against by action. – A judgment in a colonial court is no estoppel; nor is it pleadable in bar in an action brought in England for the same cause.

Citations:

[1850] EngR 74, (1850) 9 CB 662, (1850) 137 ER 1052

Links:

Commonlii

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Jurisdiction

Updated: 18 May 2022; Ref: scu.297421

The Bank of Australasia v Nias: 1851

By an Act of the Colonial Legislature of New South Wales, it was provided tbat a banking company should sue and be sued in the name of its chairman, arid that execution on any judgment against the oompany might be issued against the property of any member for the time being, in like manner as if such judgment had been obtairied against such member personally. In assumpsit against a member of the company on a judgment obtained in the colony against the chairman: Held, that the colonial Legislature had authority to pass the Act, and that there was nothing repugnant to the law of England, or to natural justice, in enacting that actions on contracts made by the company in the colony, instead of being brought against the shareholders individually, should be brought against the chairman whom they had appointed to represent them. That a judgment recovered in such an action, after service of process on the chairman, had the same effect beyond the territory of the colony which it would have had if the defendant had been personally served with process, and, he being a party to the record, the recovery had been personally against him. That, although in an action on a foreign or colonial judgment the judgment is examinable to a certain extent., as, for the purpose of shewing want of jurisdiction, or that defendant was not summoned, or that the judgment was fraudulently obtained, yet such judgment is not examinable upon the merits, as, for the purpose of shewing that the contract sued upon was not made, or was procured by fraud, or that the judgment was erroneous, But that a foreign or colonial judgment obtained against a co-contractor cannot be insisted on by way of merger in an action on the judgment.

Citations:

[1851] EngR 77, (1851) 16 QB 717, (1851) 117 ER 1055

Links:

Commonlii

Cited by:

CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 18 May 2022; Ref: scu.296393

The Attorney-General, At The Relation Of Freer, Thompson, Flower, Lucy, Ford, Greaves, and The Mayor, Aldermen, And Burgesses of The Borough of Stratford-Upon-Avon County of Warwick,: 17 Jul 1851

A railway company was constituted in 1846 for the purpose of making a railway from A. to B., with a diverging line to C. In June 1851 the line of railway from A. to B. was nearly completed, but no steps had been taken to construct the diverging line, An information was then filed by the Attorney-General, at the relation of certain parties claiming to be interested in the diverging line, to restrain the company from opening the line from A. to B, except with the intention of oompleting also the diverging line. Held, upon demurrer, that the neglect by the company to complete the whole line could not be regarded in the light of a public injury so as to warrant the interference of the Attorney General.

Citations:

[1851] EngR 722, (1851) 3 Mac and G 453, (1851) 42 ER 335

Links:

Commonlii

Company, Administrative

Updated: 18 May 2022; Ref: scu.297038

Green v The London General Omnibus Company (Limited): 18 Nov 1859

A corporation aggregate may be liable to an action for intentional acts of misfeasance by its servants, provided they are sufficiently connected with the scope and object of its incorporation. Therefore, in an action against a company established for conveying passengers by omnibuses in the streets of London, charging that the company by its servants wrongfully, vexatiously, and maliciously did certain acts (describing them) with a view to, and which in the result did, obstruct and annoy the plaintiff’ in the conduct of a similar trade :- Held, that, as the acts complained of were connected with the object and purpose for which the company was incorporated the company was responsible.

Citations:

[1859] EngR 999, (1859) 7 CB NS 290, (1859) 144 ER 828

Links:

Commonlii

Jurisdiction:

England and Wales

Torts – Other, Company

Updated: 18 May 2022; Ref: scu.288351

Simpson v Eggington: 9 Feb 1855

It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year’s salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation — Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’

Judges:

Parke B

Citations:

(1855) 10 Exch 845, [1855] EngR 220, (1855) 10 Exch 845, (1855) 156 ER 683

Links:

Commonlii

Cited by:

AppliedSmith v Cox 1942
The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
CitedTreasure and Son Ltd v Dawes TCC 15-Sep-2008
The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
CitedPark v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant, Company, Contract

Updated: 18 May 2022; Ref: scu.276500

Kenneth Allison Ltd v AE Limehouse Ltd: HL 1992

If one party, knowing that another wishes to serve process upon him, requests or authorises the other to do so in a particular way which is outside the Rules and the other does so, then, unless the Rules themselves prohibit consensual service, the party so served cannot be heard to say that the service was not valid. In the circumstances of the present case the validity of the service would have been affirmed under Montgomery. Subsequent changes in the Rules of the Supreme Court have not introduced a prohibition of consensual service outside the Rules.

Judges:

Lords Bridge, Lowry, Templeman and Jauncey

Citations:

[1992] 2 AC 105

Statutes:

Companies Act 1985 725(1)

Jurisdiction:

England and Wales

Citing:

CitedMontgomery, Jones and Co v Liebenthal and Co 1898
The court rejected the argument that the rules of court prohibited an agreement between the parties to adopt an arrangement for service which did not comply with the rules. . .

Cited by:

CitedCranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 17 May 2022; Ref: scu.182215

Advanced Technology Structures Ltd v Cray Technology Ltd: CA 22 Feb 1993

There should be no legal aid for a company’s nominee to bring what were, in effect, company proceedings. Parliament had deliberately excluded such assistance, and it should not be circumvented by the company assigning its rights in action to a nominee.

Citations:

Ind Summary 22-Feb-1993

Statutes:

Legal Aid Act 1974

Jurisdiction:

England and Wales

Legal Aid, Company

Updated: 17 May 2022; Ref: scu.77658

Affleck and Others v Newcastle Mind and Others: EAT 10 Mar 1999

EAT Employees of an unincorporated charitable association are employed by the management committee or other similar body within the association, and not by the members of the association at large. The employees have continuity of employment despite any change in the constitution of the committee. In practice such actions should be brought against a representative member or members of the committee. The case was remitted to the ET to hold a case management hearing to determine who should be the correct respondents.

Judges:

Morison J

Citations:

Gazette 11-Aug-1999, (1999) IRLR 405, [1999] UKEAT 537 – 98 – 1003, [1999] ICR 852

Links:

Bailii

Statutes:

Charities Act 1993 97(1), Employment Rights Act 1996 218(2)

Employment, Company, Charity

Updated: 17 May 2022; Ref: scu.77664

Re a company (No.00477 of 1986): 1986

Judges:

Hoffmann J

Citations:

[1986] BCLC 376

Cited by:

CitedRe Haden Bill Electrical Ltd 1995
The petitioner had had in practice control of the company as chairman and though he owned only 25% of the shares. His own company loaned andpound;200,000 to the company as working capital. He complained that he had been removed as a director.
MentionedIn the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited CA 1-May-1997
The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.264073

Highland Engineering Ltd v Thomson: 1972

The liquidation of a company is treated as the equivalent as bankruptcy to prevent the hardship of a debtor who is also a creditor being forced to pay in full, when he will come in only as a creditor for a dividend for his debt as a result of ranking pari passu with the ordinary creditors.

Citations:

1972 SC 87

Jurisdiction:

England and Wales

Cited by:

CitedMelville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company, Insolvency

Updated: 17 May 2022; Ref: scu.251596

In re English, Scottish and Australian Chartered Bank: 1893

Vaughan Williams J said: ‘One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to govern the liquidation; and let the other courts act as ancillary, as far as they can, to the principal liquidation. But although that is so, it has always been held that the desire to assist in the main liquidation – the desire to act as ancillary to the court where the main liquidation is going on – will not ever make the court give up the forensic rules which govern the conduct of its own liquidation.'(

Judges:

Vaughan Williams J

Citations:

[1893] 3 Ch 385

Cited by:

CitedCape Plc and Others, Re Companies Act 1985 ChD 16-Jun-2006
The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of . .
CitedMcGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, International

Updated: 17 May 2022; Ref: scu.244199

In re Ottos Kopje Diamond Mines Ltd: CA 1893

Bowen LJ: (referring to Bahia) ‘The way in which the Court made the company liable was this: they said that in as much as the certificate had been intended to be acted upon, it became a document the truth of which the company could not deny as against the transferee to whom it was intended to be shewn; and, therefore, it precluded the company, as against the transferee, from denying the truth of what the certificate contained; they could not be in any better position than if the statement were true;’

Judges:

Bowen LJ

Citations:

[1893] Ch 618

Cited by:

MentionedCadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Company

Updated: 17 May 2022; Ref: scu.242174

Simm and Others v Anglo-American Telegraph Co: CA 1879

A firm which had acted through nominees sought to raise an estoppel as to its status on the company registers.
Held: The nominees acquired a ‘title by estoppel’ against the company following the issue by the company of a share certificate to the nominees. But that ‘title’ had been lost by the time the action began and was not available to Burge and Co. No representation was made which they had acted upon. Even if there had been a representation, that firm had not altered their position in any material way.

Judges:

Brett LJ, Cotton LJ

Citations:

(1879) 5 QBD 188

Cited by:

DistinguishedDixon v Kennaway and Co 1900
Farwell J said: ‘There is no doubt on the authorities that a certificate under the seal of the company estops the company from denying the title of a person who has accepted and acted on the certificate. In Knights -v- Wiffen [LR 5 QB 660 at 665] . .
CitedCadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Company

Updated: 17 May 2022; Ref: scu.242177

The Balkis Consolidated Co Ltd v Tomkinson and Others: HL 1893

Tomkinson, a stockbroker, bought shares was registered by the company and received share certificates, and then sold them. The company found that the vendor to him had previously sold the shares to someone else who had been duly registered. The transfer to Tomkinson was a fraud, and the company refused to register Tomkinson’s purchasers. Tomkinson bought other shares in the market to make good his transactions with his purchasers and sued the company for his costs. Pollock B. gave judgment in Tomkinson’s favour, as did the Court of Appeal.
Held: All the elements necessary to creat an estoppel were present.
Lord Herschell LC described the effect of Bahia:- ‘The Court held that the giving of the certificate amounted to a statement by the company, intended by them to be acted upon by the purchasers of shares in the market, that the persons certified as the holders were entitled to the shares; and that the purchasers having acted on the statement by the company, they were estopped from denying its truth and liable to pay as damages the value of the shares.’ and ‘The learned counsel for the appellants impeached these decisions, as they were entitled to do in your Lordships’ House, and contended that they ought to be overruled. After carefully considering the able arguments urged at the Bar, I have no hesitation in expressing my concurrence in the law laid down by the Court of Queen’s Bench in Re Bahia and The San Francisco Railway Co.. The reasoning of Blackburn J in pronouncing judgment in that case appears to me to be sound and in accordance with the law, and I think it would be very mischievous to cast any doubt on the authority of that case.’
Lord Macnaghten:- ‘The general principle of law relating to estoppel by representation cannot be questioned. It is, as Lord Cranworth observed in the case of Jorden v. Money, before this House, a principle of universal application, that if a person makes a false representation to another and that other acts upon that false representation the person who has made it shall not afterwards be allowed to set up that what he said was false and to assert the real truth in place of the falsehood which has so misled the other. Then, after referring to some cases on the subject, his Lordship goes on to say: ‘I think the principle may be carried much further, because I think it is not necessary that the party making the representation should know that it was false, no fraud need have been intended at the time. But if the party has unwittingly misled another you must add that he has misled another under such circumstances that he had reasonable ground for supposing that the person whom he was misleading was to act upon what he was saying.’ Now there is no doubt, I think, that in this case the company must be taken to have known that the certificate was required by Tomkinson or his firm for the purpose of being acted upon.’

Judges:

Lord Herschell LC, Lord Macnaghten, Lord Field

Citations:

[1893] AC 396

Jurisdiction:

England and Wales

Citing:

CitedRe The Bahia and San Francisco Railway Co Ltd v Trittin and others CA 1868
Miss Trittin left her share certificates with a broker. A forged transfer together with the certificates, was lodged with and with registered by the company. The new certificates certified that the named person as registered holder. He then sold . .

Cited by:

CitedCadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.242172

Gradwell (PTY) v Rostra Printers Ltd: 1959

(South Africa) An offer was made of andpound;42,000 for the shares and the loan account that was then outstanding to the parent company less amounts owed to lenders on first mortgages. An analysis showed that andpound;40,258 was owed on the loan account and taking into account the higher securities the amount actually paid was less than that amount.
Held: The repayment of the loan account would help the purchaser to effect the apparent purchase but the repayment of the debt was held not to infringe the provisions of the section.

Judges:

Schriener J

Citations:

[1959] (4) SA 419

Statutes:

Companies Act 1926 86(2)

Cited by:

CitedAnglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
CitedArmour Hick Northern Ltd v Whitehouse; Armour Trust Ltd ChD 1980
A vendor company was assisted by financial assistance given by a subsidiary.
Held: The use of money by a company to repay its existing indebtedness would not normally fall within the concept of the company giving financial assistance to . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 17 May 2022; Ref: scu.238728

Green v BDO Stoy Hayward LLP: ChD 2 Nov 2005

The liquidator sought production of the company’s books and documents held by the defendant as former auditors of the company.
Held: The power to order discovery could be more freely exercised against an officer of a company than against a third party. Nevertheless a company’s auditors were, for this purpose treated on a par with the officers.

Judges:

Kitchin J

Citations:

Times 07-Nov-2005

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Citing:

CitedIn re British and Commonwealth Holdings plc (Nos 1 and 2) HL 1993
Section 236 extended the power of a liquidator to require from the company’s officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Lord Slynn said: ‘The protection for the person called upon to produce . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 17 May 2022; Ref: scu.235767

Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd: 1924

The court looked at personal responsibility of the directors of a company for torts committed by the company: ‘Prima facie a managing director is not liable for tortious acts done by servants of the company unless he himself is privy to the acts, that is to say unless he ordered or procured the acts to be done. . . I conceive that express direction is not necessary. If the directors themselves directed or procured the commission of the act they would be liable in whatever sense they did so, whether expressly or impliedly.’

Judges:

Atkin LJ

Citations:

[1924] 1 KB 1

Jurisdiction:

England and Wales

Cited by:

CitedMCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
CitedCampbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.230355

Herbert Berry Associates Ltd v Inland Revenue Commissioners: CA 2 Jan 1976

The word ‘proceedings’ meant the ‘invocation of the jurisdiction of a court by process other than writ’.

Judges:

Russell LJ

Citations:

[1977] 1 WLR 617, [1977] 3 All ER 729, 121 SJ 252

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Citing:

At ChDHerbert Berry Associates Ltd v Inland Revenue Commissioners ChD 1976
The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company . .
CitedValensi v British Radio Corporation CA 1973
The court considered the test for deciding what degree of knowledge, skill and perseverance the skilled man was assumed to have as a ground for revocation of a patent on the associated basis. There had been a mistake in the specification of the . .

Cited by:

At CAHerbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor HL 1977
The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 17 May 2022; Ref: scu.228992

In re Saul Harrison and Sons PLC: CA 1994

The plaintiffs claimed that the directors had either exceeded their powers or had exercised their powers for some illegitimate or ulterior purpose.
Held: Where the claim of unfairness was not reasonably arguable, the court could exercise its jurisdiction to strike out a petition presented under section 459. Having observed that petitions under section 459 are ‘notoriously burdensome’ and can themselves be used as a means of oppression, the court scrutinised the allegations of unfairness with care to see if an arguable case could be made out. The claim for relief stood or fell by whether allegations of bad faith by the directors could be made out. It concluded that they were unarguable.

Citations:

[1994] BCC 475

Statutes:

Companies Act 1985 459 461

Jurisdiction:

England and Wales

Cited by:

CitedGuinness Peat Group Plc v British Land Company Plc and others CA 18-Dec-1998
The claimant, a minority shareholder, had said that the defendant had acted prejudicially in transferring the company’s only substantial asset to another company. The respondent said that since the shares had always been of nil value they could not . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.228983

In re Overseas Aviation Engineering(GB) Ltd: CA 1963

A charging order on land under section 35(1) of the 1956 Act obtained to enforce a judgment debt was a form of ‘execution’ for the purposes of section 325 CA 1948. Lord Denning MR: ‘The word ‘execution’ is not defined in the Act. It is, of course, a word familiar to lawyers. ‘Execution’ means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is ‘completed’ when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated: ‘Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is; and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he heath the possession of the land, or is paid the debt or damages, or heath the body of the defendant awarded to prison, then he heath execution.’ And the same meaning is to be found in Blackman v. Fysh,[1892] 3 Ch 209,217 (C.A.) when Kekewich J. said that execution means the ‘process of law for the enforcement of a judgment creditor’s right and in order to give effect to that right.’ In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. But in either case it was ‘execution’ because it was the process for enforcing or giving effect to the judgment of the court.’
Harman LJ: ‘Now what is execution but the enforcement of a judgment or order? In my judgment, the new remedy given by section 35 is merely an alternative method of execution against the debtor’s land, replacing the old writ’.

Judges:

Lord Denning MR, Harman LJ

Citations:

[1963] I Ch 24

Statutes:

Administration of Justice Act 1956 35(1), Companies Act 1948 325

Jurisdiction:

England and Wales

Cited by:

CitedBrenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.228985

Herbert Berry Associates Ltd v Inland Revenue Commissioners: ChD 1976

The collector of taxes distrained on the goods of the company under section 61 TMA 1970 for unpaid taxes and the company entered into a walking possession agreement. Before the collector had sold the goods, and completed the distress, the company entered into voluntary winding-up and a liquidator was appointed. There was a deficiency of andpound;91,000, with preferential creditors of andpound;31,000 and assets of andpound;25,000 including the distrained goods. The goods were later sold with the consent of the collector for andpound;10,500. The collector claimed payment in full of the unpaid tax from the proceeds of sale of the goods. The liquidator contended that the Crown could not assert its right to distrain in order to be paid in full, but by section 319(5) CA 1948 (which concerned preferential payments; the Crown’s claim for unpaid tax was a preferential debt) was only entitled to rank pari passu with other preferential creditors. It was argued that since the Crown was distraining for a preferential debt, it was bound by section 319(5) which provided for pari passu distribution among preferential creditors.
Held: The collector was entitled to distrain by taking possession prior to the date of the winding-up and then to complete it unless there were special reasons rendering it inequitable for him to do so. No distinction was to be drawn in this context between distraint by a landlord and distraint by the collector. The effect of section 319(5) ranking preferential debts pari passu was not a special circumstance which rendered it inequitable for the distress to be completed. The completion of the distress would not be incompatible with the apparently provisions of CA 1948. CA 1948 distinguishes between distress, whether by a landlord or the Crown, and execution. S228 refers to the four remedies of attachment, sequestration, distress and execution. S371(7) deals with distress by landlords or other person and s325 deals with execution or attachment. Templeman said: ‘In my judgment, it is not possible to extract distress by the Crown from distress in general in section 319 and include it somehow or other in section 325, which is not dealing with distress.’
The court rejected the argument that the collector had abandoned or prejudiced his right of distress by accepting a walking possession agreement: ‘In my judgment, the property of a company, which is directed by section 302 [now section 107 IA 1986] to be applied for the benefit of the creditors subject to preferential payments, is the property subject to such rights as were exercised prior to the date of the winding-up. At the date of the winding-up in the present case, the goods were in the possession of the collector, and he had power to sell them in order to discharge unpaid taxes. The property of the company at the date of the winding-up consisted only of its right to any surplus realised on that sale.’

Judges:

Templeman J

Citations:

[1976] 3 All ER 207, [1976] 1 WLR 783, 120 SJ 538

Statutes:

Taxes Management Act 1970 61, Companies Act 1948 319(5)

Jurisdiction:

England and Wales

Citing:

FollowedRe Roundwood Colliery Co 1897
The court discussed the interplay of a distress by the landlord and the later insolvency of the tenant. . .
Not followedMacGregor v Clamp and Son 1914
A distress for taxes was ‘really by way of execution’. . .

Cited by:

At ChDHerbert Berry Associates Ltd v Inland Revenue Commissioners; re Herbert BerrySP, Regina (on The Application of) v The Lord Chancellor HL 1977
The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be . .
CitedBrenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
At ChDHerbert Berry Associates Ltd v Inland Revenue Commissioners CA 2-Jan-1976
The word ‘proceedings’ meant the ‘invocation of the jurisdiction of a court by process other than writ’. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 17 May 2022; Ref: scu.228989

Advanced Technology Structures Ltd v Cray Valley Products Ltd: CA 1993

An assignment of the cause of action should not be recognised or given effect because it was a ‘sham’.
Hirst LJ said that the assignment was: ‘a mere stratagem or device to enable the company to carry on the proceedings, with the support of Mr. Pratt’s [the assignee] legal aid, which manifestly neither they nor he could afford to do otherwise. . . The sole purpose of the assignment was therefore to tap the resources of the legal aid fund, which are available to Mr. Pratt only because of his own impecuniosity.’ To give effect to the assignment would conflict with ‘the underlying policy of the Act,’ which was that ‘legal aid should not be available to corporate plaintiffs.’
Leggatt LJ said: ‘When Parliament decided that legal aid should not be available to corporations, it cannot have been its intention that a corporation should be able to nominate an employee, to whom it has assigned a right of action, to conduct the litigation on its behalf with the assistance of legal aid for which he was eligible.’

Judges:

Hirst LJ, Leggatt LJ, Glidewell LJ

Citations:

[1993] BCLC 723

Jurisdiction:

England and Wales

Cited by:

DistinguishedNorglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Etc CA 6-Dec-1995
An assignment of a cause of action in order to be eligible to apply for Legal Aid is not against public policy. An assignment of a cause of action was not invalid solely on the ground that its purpose was to enable the action to be prosecuted on . .
Wrongly decidedNorglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Company

Updated: 16 May 2022; Ref: scu.223194

In re Maxwell Communications plc: ChD 1993

It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in insolvency.
Held: This was not the law. There was no reason why a particular creditor should not waive his right to prove altogether, or save to the extent of assets remaining after another creditor is satisfied, and that he could do this either in the insolvency or in advance of it.
Vinelott J explained his decision in In re British and Commonwealth plc (No 3): ‘I took the view that to the extent that the assets of the company were insufficient to meet the liabilities to unsecured creditors, other than the holders of the loan stock, the holders of the loan stock had no interest in the assets of the company and no right to vote at a meeting of unsecured creditors, that in the very unlikely, indeed, merely theoretical possibility that the realisation of the company’s assets would suffice to meet the claims of the scheme creditors, the rights of the holders of the unsecured loan stock would be unaffected by the scheme; and that in these circumstances the liquidator [sic – he must have meant administrator] could properly call a meeting of the scheme creditors alone, and if the scheme of arrangement was approved, apply to the court to sanction the scheme.’

Judges:

Vinelott J

Citations:

[1993] 1 WLR 1402

Jurisdiction:

England and Wales

Citing:

CitedIn re British and Commonwealth plc (No 3) ChD 1992
Bonds were subordinated in a winding up, and the company was in administration in which the administrators were proposing a scheme of arrangement. The judge was invited to apply the Tea Corporation principles in order to arrive at a conclusion that . .

Cited by:

CitedMytravel Group Plc, Re Companies Act 1985 ChD 24-Nov-2004
The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those . .
CitedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 16 May 2022; Ref: scu.220257

In re British and Commonwealth plc (No 3): ChD 1992

Bonds were subordinated in a winding up, and the company was in administration in which the administrators were proposing a scheme of arrangement. The judge was invited to apply the Tea Corporation principles in order to arrive at a conclusion that the bondholders would recover nothing and so would not have the right ot vote at a meeting to consider the relevant scheme. He drew attention to the fact that in the Tea Corporation case there was a finding that the assets would not suffice to meet the claims of shareholders and that there was a concession to that effect in Oceanic. He went on to say: ‘In the instant case the trustee does not concede that the proceeds of realisation of the company’s assets, whether in the course of administration or in the course of winding up, would inevitably be insufficient to meet the claims of scheme creditors . . .The evidence relied on by the trustee is also criticised on what appears to me to be cogent grounds in evidence filed on behalf of he administrators. The claim that there is even a remote possibility that sufficient might be realised in the course of administration or in winding up to meet the claims of the scheme creditors in full seems to me to verge on the fanciful. However, in the absence of any concession, I cannot on this application proceed on the assumption that there is no possibility that the claims of the scheme creditors will be met in full.’ However, despite his unwillingness to proceed on that assumption, the learned judge still came to the conclusion that the bondholders’ consent was not required, and at court concluded that the bondholders had no interest in the assets of the company: ‘It follows to the extent that the assets of the company are insufficient to meet the claims of scheme creditors, the holders of CULS have no interest in the assets of the company.’

Judges:

Vinelott J

Citations:

[1992] BCC 58, [1992] BCLC 322, [1992] 1 WLR 672

Jurisdiction:

England and Wales

Citing:

CitedRe Tea Corporation CA 1904
A scheme was proposed in a liquidation and a meeting of, inter alia, ordinary shareholders was proposed, who were to be given shares in the new company in place of their shares in the old, so to that extent they were affected by the scheme. The . .

Cited by:

CitedMytravel Group Plc, Re Companies Act 1985 ChD 24-Nov-2004
The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those . .
CitedIn re Maxwell Communications plc ChD 1993
It was argued that the pari passu distribution of assets among unsecured creditors was a general rule of insolvency law from which it was not possible to contract out, even to one’s own disadvantage, particularly by analogy with cases on set-off in . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 16 May 2022; Ref: scu.220256

Bottin (International) Investments Ltd v Venson Group Plcgrant Scriven Clive Lawson Smith: CA 22 Oct 2004

Under a share purchase agreement, ‘notice of the claim had to be made in writing ‘specifying such details of the event or circumstances giving rise to such claim as are available to the investor and an estimate (if capable of preparation by the investor) of the total amount of the warrantor’s liabilities therefor claimed.’

Judges:

Lord Justice Peter Gibson

Citations:

[2003] EWCA Civ 1368

Jurisdiction:

England and Wales

Citing:

Appeal fromBottin (International) Investments Limited v Venson Group Plc Grant Scriven Clive Lawson Smith ChD 3-Feb-2004
. .
CitedThomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

CitedForrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 16 May 2022; Ref: scu.218851

Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another: CA 1993

Citations:

[1993] 1 WLR 872, [1993] ICR 251

Jurisdiction:

England and Wales

Cited by:

Appeal fromRegina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
CitedArcher and Watkins v Registrar General and Another PC 24-Jun-2004
(The Bahamas) The claimants challenged the way the respondent had allowed a company to alter its register of shareholders to their detriment.
Held: The responsibility for maintaining the share register rested on the company and its officers, . .
Lists of cited by and citing cases may be incomplete.

Company, Discrimination

Updated: 16 May 2022; Ref: scu.198488

Harlow and Another v Loveday and Another; In re Hill and Tyler Ltd (in administration): ChD 28 May 2004

The administrators challenged the validity of a charge which appeared to have been given by the company to secure the purchase of shares in the company.
Held: The loan itself did not amount to assistance, but the charge did. It was indirect financial assistance. The company officers had not complied with the necessary whitewash procedures to validate the transaction. The declaration made by the officers was incorrect, but viewed as a whole and in the light of the possible severe consequences to the officers, it could be viewed to be correct. Even so, it was unenforceable because it contravened section 151, in which case the availability of the whitewash procedure whether successfully implemented or not, did not rescue the charge. It was unenforcable.

Citations:

Times 11-Jun-2004, [2005] 1 BCLC 41

Statutes:

Companies Act 1985 155 156 157 158

Jurisdiction:

England and Wales

Citing:

CitedCentral and Eastern Trust Co v Irving Oil Ltd 1980
(Canada) Indirect financial assistance in purchase of company’s shares. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 16 May 2022; Ref: scu.198128

Broadway Approvals Ltd v Odhams Press Ltd (No 2): CA 1965

A company’s mind is not to be assessed on the totality of knowledge of its employees. Malice was not to be established by forensic imagination however eloquently and subtly expressed.
Russell LJ said: ‘the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels.’

Judges:

Sellers, Davies and Russell L.JJ

Citations:

[1965] 1 WLR 805

Citing:

AppliedRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .

Cited by:

CitedAlexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
CitedCassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
CitedTelnikoff v Matusevitch HL 14-Nov-1991
The court should decide on whether an article is ‘fact or comment’ purely by reference to the article itself, and not taking into account any of the earlier background coverage. It is the obligation of the relevant commentator to make clear that the . .
CitedBray v Deutsche Bank Ag QBD 12-Jun-2008
A former employee of the defendant bank sued in defamation after the bank published a press release about its results which he said was critical of him.
Held: Where there is a real issue as to whether the words are defamatory of the claimant, . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages, Company

Updated: 16 May 2022; Ref: scu.194318

Van Gestel v Can: CA 7 Aug 1987

Directors have a positive duty to disclose their pre-existing breaches of fiduciary duty.

Citations:

1987 CLY 454, Times 07-Aug-1987

Jurisdiction:

England and Wales

Cited by:

CitedTesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Lists of cited by and citing cases may be incomplete.

Company

Updated: 16 May 2022; Ref: scu.194879

Secretary of State for Trade and Industry v Ettinger: 1993

The court discussed the standards required of company directors. ‘Those who take advantage of limited liability must conduct their companies with due regard to the ordinary standards of commercial morality. They must also be punctilious in observing the safeguards laid down by Parliament for the benefit of others who have dealings with their companies. They must maintain proper books of account and prepare annual accounts; they must file their accounts and returns promptly; and they must fully and frankly disclose information about deficiencies in accordance with the statutory provisions.’ and ‘The seriousness with which such conduct is to be viewed is shown by the provisions of the Disqualification Act itself. The extent to which a director is responsible for any failure to comply with the statutory provisions regarding accounting records and the preparation of annual accounts is one of the matters to which the court is required to have regard in determining unfitness to be concerned in the management of a company. Those who persistently fail to discharge their statutory obligations in this respect can expect to be disqualified, for an appropriate period of time, from using limited liability as one of the tools of their trade.’

Judges:

Nicholls V-C

Citations:

[1993] BCLC 896

Statutes:

Company Directors Disqualification Act 1985

Jurisdiction:

England and Wales

Cited by:

CitedThe Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 16 May 2022; Ref: scu.188620

Akerhielm v De Mare: PC 1959

A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was not fraudulent having been made with an honest belief in its truth. When a party has been acquitted of fraud the decision in his favour should not be displaced except on the clearest grounds.
Lord Jenkins said: ‘their Lordships are satisfied that this is not one of those exceptional cases in which an appellate court is justified in reversing the decision of a judge at first instance when the decision under review is founded upon the judge’s opinion of the credibility of a witness formed after seeing and hearing him give his evidence. Their Lordships can hardly imagine a case in which the credibility of a witness could be more vital than a case like the present where the claim is based on deceit, and the witness in question is one of the defendants charged with deceit. Their Lordships would add that they accept, and would apply in the present case, the principle that where a defendant has been acquitted of fraud in a court of first instance the decision in his favour should not be displaced on appeal except on the clearest grounds.’ and ‘The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made.’

Judges:

Lord Jenkins

Citations:

[1959] AC 789, [1959] 3 All ER 485

Jurisdiction:

Commonwealth

Citing:

CitedGlasier v Rolb 1889
A finding by a judge that a party is innocent of fraud should only reluctantly be disturbed. . .
CitedSS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
CitedWatt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
CitedYuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
CitedBenmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .

Cited by:

CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedThe Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
AppliedRyan and Another v Strickland Jarvis PC 29-Jun-2005
(Antigua and Barbuda) The parties disputed the effect of a joint venture of the sale of an additional range of cars through a car showroom. One party said the other had misrepresented thir contractual status, and the other said that an approach had . .
CitedYaqoob and Another v Royal Insurance (Uk) Ltd CA 25-May-2006
Appeal against refusal of insurance company to pay on fire loss claim. Building entered by intruders with key.
Held: ‘If after hearing the evidence the judge had been left in the position that he could not be satisfied, on the balance of . .
CitedCrystal Palace FC (2000) Ltd v Dowie QBD 14-Jun-2007
The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other, Company

Updated: 16 May 2022; Ref: scu.187260

Langley Holdings v Seakens: QBD 19 Oct 2000

The claimant sought recovery from one of two partners in a solicitors’ firm of solicitors of sums paid to the firm and misappropriated by the partner, who had conspired with others to offer a fraudulent investment. The claimant admitted that the promised return was incredible. The funds were received on an undertaking that they would not be used absent documentation. That undertaking was broken. It was in a solicitor’s ordinary course of business to hold money for his client. Nevertheless the defendant contended that the ‘underlying transaction’ had been ‘extraordinary’ and ‘outlandish’ and no reasonable person could have acted in it; and that the claimant could have had no genuine belief.
Held: The claimant was so dazzled by the promised profits that they had not asked whether there was a genuine investment. The recipt of the funds could not have been in the ordinary course of the business of a solicitor, and it followed that the partner was not liable.

Citations:

Unreported, 19 October 2000

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

CitedJ J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 16 May 2022; Ref: scu.186089

Gamlen Chemical Co (UK) Ltd v Rochem Ltd: CA 4 Dec 1979

Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors’ lien. The first firm appealed.
Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.
Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client’s papers to the client’s new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted ‘in order to save the client’s litigation from catastrophe’.
Goff LJ stated: ‘the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards and must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.’

Judges:

Goff and Templeman LJJ

Citations:

[1980] 1 WLR 614, [1980] 1 All ER 1049, [1983] RPC 1

Jurisdiction:

England and Wales

Citing:

ApprovedHeslop v Metcalfe 1837
The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, . .
CitedHughes v Hughes 1958
Hodson LJ said: ‘There is no doubt that a solicitor who is discharged by his client during an action otherwise than for misconduct can retain any papers in the cause in his possession until the costs have been paid . . This rule applies, as the . .
CitedRobins v Goldingham 1872
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs. . .
Appeal from (Dicta approved)Gamlen Chemical Co (UK) Ltd v Rochem Ltd 1983
Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make . .

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
CitedFrench v Carter Lemon Camerons Llp CA 3-Sep-2012
The appellant had instructed the defendant solicitors in litigation. On beginning to act in person she sought an order to require the solicitors to deliver the case papers to her. They asserted a lien on them until their account was paid. She now . .
CitedWalsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.182182

Davis v Davis: 1894

Conversion of partnership property. The correct approach is not to conclude that there is a partnership simply because one of the presumptions arises on the facts and is not rebutted by something else; instead, all the facts must be considered, not just those giving rise to the presumption, and, without giving undue weight to any of them, an inference must be drawn from the whole.

Citations:

[1894] 1 ChD 393

Jurisdiction:

England and Wales

Cited by:

CitedRobinson v Reeve ChD 14-Jun-2002
The parties were brother and sister, owning and renting properties. The issue was whether they were in partnership, and to what extent properties in one name were held in trust for the two.
Held: A partnership was not to be inferred solely . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 16 May 2022; Ref: scu.181203

Welsby v Brelec Installations Limited: ChD 2001

The CVA provided for the payment by the company of contributions to the supervisors for distribution to creditors. The company went on into a creditors’ voluntary liquidation.
Held: The sums held by the supervisors in trust for the CVA creditors remained subject to that trust notwithstanding the liquidation. Blackburne J said as to a CVA: ‘ . . the effect of the creditors’ approval of the debtors’ proposal is, as is well-established, to give rise to a species of statutory contract between the creditors bound by the arrangement on the one hand and the debtor on the other.’ and ‘An arrangement is usually put together in some haste. Mod~flcations to it are frequently made at the statutory meeting of creditors with little time to reflect on how they relate to the other terms of the debtor’s proposal. Quite often, as this case demonstrates, the resulting terms are clumsily worded. The arrangement ought therefore to be construed in a practical fashion. Otherwise there is a risk that careless drafting coupled with a too-literal approach to its construction will serve to frustrate rather than achieve the purpose of the arrangement.’

Judges:

Blackburne J

Citations:

[2001] BCC 421, [2002] 2 BCLC 576

Jurisdiction:

England and Wales

Cited by:

CitedWright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 16 May 2022; Ref: scu.605851

Nant-y-glo and Blaina Ironworks Co v Grave: 1878

Shares in a company had been given by a promoter to the defendant to induce him to become a director.
Held: They belonged to the company.

Judges:

Sir James Bacon V-C

Citations:

(1878) 12 Ch D 738

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 16 May 2022; Ref: scu.551506

Re Union Accident Insurance Co Ltd: ChD 1972

A provisional liquidator cannot be appointed on a baseless petition. There are two conditions to be met. The first was that the petition must disclose a prima facie case, the second was that there were circumstances that require that a provisional liquidator ought to be appointed. The circumstances were not limited. The fact that the petition was not opposed was one of them. In this case, a prima facie case was established because it was shown that the company could not meet the level of solvency required of insurance companies by statute. The circumstances here required that a provisional liquidator ought to be appointed, and it was in the interest of the public in the fact that sums retained by brokers amounting to a large sum of andpound;300,000 be collected from them. A provisional liquidator was correctly appointed.
It is inappropriate to limit the exercise of the power to appoint a provisional liquidator by restricting it to fixed categories or classes of circumstances or fact, as commercial affairs are complex and circumstances will vary greatly.
Nevertheless, before a winding up order is made, a company’s Board of directors retained certain residuary powers which included the authority to instruct solicitors and counsels to oppose the petition, notwithstanding the appointment of provisional liquidators to the company.
Plowman J explained the twofold approach that he proposed to adopt: ‘There are two matters though, which seem to be relevant for me to consider. The first is whether the department has made out a good prima facie case for a winding-up on the hearing of the petition. Any views I express about the matter now are of course provisional only because I am not trying the petition at the present time. If the department has not made out a good prima facie case for a winding-up order then clearly I think it would not be right to appoint a provisional liquidator. On the other hand, if the department has made out a good prima facie case for a winding-up order then the second matter for my consideration arises, namely, whether in the circumstances of this case it is right that a provisional liquidator should have been appointed.’

Judges:

Plowman J

Citations:

[1972] 1 All ER 1105, [1972] 1 WLR 640

Jurisdiction:

England and Wales

Cited by:

CitedRevenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
CitedRevenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
CitedHM Secretary of State for Business Enterprise and Regulatory Reform, Re Order To Wind Up UK Bankruptcy Ltd SCS 31-Mar-2009
Outer House – Court of Session – . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 15 May 2022; Ref: scu.510891

In re Ehrmann Brothers Ltd: CA 1906

Debentures had been issued after 1 January 1901 secured by a floating charge. It was was not registered in time. The judge had permitted registration, with a proviso as contained in In re I C Johnson, and registration was completed. A compulsory winding up petition was then filed, and the company then itself resolved to wind up. Buckley J allowed the petitioning creditor to take part in an inquiry as to the priorities between the debenture holder and the unsecured creditors. In that inquiry, Joyce J gave the unsecured creditors equal priority with the registered debenture holders.
Held: The debenture holder’s appeal succeeded, though the intervention of winding up before registration created rights in all the unsecured creditors protected by the proviso.
Vaughan Williams LJ said that the registration (pursuant to the extension) meant that the debentures were ‘no longer void’, limiting the protective effect of the proviso to those who had acquired rights of, or against, the property the subject of the charge prior to registration. He said that Buckley J had expressed the matter too widely in In re Joplin Brewery if he had intended that the proviso protect unsecured creditors generally. He then referred to the dictum of Cozens-Hardy LJ in In re I C Johnson and made clear his view as to the effect of winding up: ‘Of course, that does not mean only creditors who individually have so done, [that is as Cozens-Hardy LJ in In re I C Johnson said: taken some proceedings to get a charge or security], but creditors who come within the operation and benefit of an order for winding-up giving the creditors a right to have such property administered for their benefit. That is the conclusion which I have come to in this case. I think that the intention of the Legislature, as appears by the statute itself, was, in a case where the omission to register was accidental and the extension of time was a just thing to grant, to place the debenture-holders in the same position as they would have been in if they had registered in due time. But of course the Legislature had to make provision for the rights of those who had obtained rights which existed at the time when the order for the extension of time was made. I do not think that the Legislature meant by that that an unsecured creditor, merely because he was an unsecured creditor at the time the extension order was made, should be allowed to say, ‘So far as I am concerned, that debenture which was not registered in due time, but which was registered under the order for extension, is a void debenture.’

Judges:

Vaughan Williams, Romer and Cozens-Hardy LJJ

Citations:

[1906] 2 Ch 697

Citing:

CitedRe Joplin Brewery Co Ltd ChD 1902
The applicants, owners of a solvent family business, sought to register a charge over the company’s assets out of time.
Held: Buckley J saw the application under s 15 of the 1900 Act as a similar application to the application to register out . .

Cited by:

CitedRehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 15 May 2022; Ref: scu.444535

In re West Coast Gold Fields Ltd: 1905

The shareholder was bankrupt, but the company, in which he owned shares on which the capital remined unpaid, was solvent and in voluntary liquidation.
Held: The payment-up of the shares in full was a condition precedent to any participation in the distribution of surplus assets. Buckley J said: ‘The right view is that the person liable as contributory must discharge himself in that character before he can set up that, as a creditor, he is entitled to receive anything, and a fortiori, as it seems to me, before he can set up that, as a contributory, he is entitled to receive anything.’

Judges:

Buckley J

Citations:

[1905] 1 Ch 597

Cited by:

CitedIn re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 15 May 2022; Ref: scu.449850

Re Finelist Limited: ChD 2004

Laddie J discussed the seriousness of the consequences of a director’s disqualification, saying: ‘It is the seriousness of these consequences and the fact that such orders are sought by the [Secretary of State] on behalf of the public which should inform the way in which the proceedings are commenced and how the [Secretary of State] carries out her functions.’ He discussed also the possibility that ‘failure of the [Secretary of State] to act fairly in preparing her case against [the director], including failing to give him an opportunity to respond to her allegations, could amount to an abuse of process.’

Judges:

Laddie J

Citations:

[2004] BCC 877

Jurisdiction:

England and Wales

Cited by:

CitedSecretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 15 May 2022; Ref: scu.444674

Muir v City of Glasgow Bank: HL 1878

The bank had failed as the result of a fraud perpertrated by its directors. The liability of the members was unlimited. Lord President Inglis said: ‘Persons becoming partners of a joint stock company, such as the Western Bank, and being registered as such, cannot escape from the full liabilities of partners either in a question with creditors of the company or in the way of relief to their copartners, by reason of the fact that they hold their stock of the company in trust for others, and are described as trustees in the register of partners and the other books and papers of the company.’

Judges:

Lord President Inglis

Citations:

(1878) 6 R 392

Jurisdiction:

Scotland

Cited by:

AppliedElliot v Mackie and Sons Ltd; Elliot v Whyte 1935
Executors of the deceased founder of the company had executed transfers of shares in favour of two of their number and a third party to qualify them as directors of the company under the articles, the trustees and executors wanting adequate . .
MentionedFarstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Lists of cited by and citing cases may be incomplete.

Scotland, Company

Updated: 15 May 2022; Ref: scu.432931

Great Northern Railway Co v Cole Co-Operative Society: 1896

A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally from these Acts of Parliament, but excluding only companies for whom provision had been made for the registration of the mortgages. The question of whether the Bills of Sale Acts applied to other companies where no provision had been made for registration, was deliberately left open.

Judges:

Vaughan Williams J

Citations:

[1896] 1 Ch 187

Statutes:

Bills of Sale Act 1878 6 8

Citing:

DistinguishedIn re Standard Manufacturing Co CA 1891
Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were . .

Cited by:

CitedOnline Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
CitedN V Slavenburg’s Bank v Intercontinental Natural Resources Ltd ChD 1980
The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 15 May 2022; Ref: scu.414891

The Queen v The Londonderry And Coleraine Railway Company: 1849

Under the Companies’ Clauses Act, 8 and 9 Vict. c. 16, s. 22, a call of money on shares is made, in point of time, when the resolution to call is passed, not when notice of the call is given to the shareholder. Therefore, by sect. 16, a shareholder cannot legally transfer his share after the passing of such resolution, without paying the call, though he has executed a deed of transfer before notice of the call was served upon him.

Citations:

[1849] EngR 89, (1849) 13 QB 998, (1849) 116 ER 1544

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 15 May 2022; Ref: scu.298394

The Queen v The Derbyshire, Staffordshire And Worcestershire Junction Railway: 31 May 1854

Under sect. 36 of The Companies Clauses Consolidation Act, 1845 (8 and! 9 Vict. c. 16), a party who has recovered judgment against a company is not precluded from assuring execution aquarist the shareholders who have riot paid up for their shares, though lands of the company have been delivered on elegit, if the proceeds of the lands be insufficient to satisfy the debt. – Therefore, in such a case, a mandamus issued commanding the Company to give the creditor inspection of the register of shareholders.

Citations:

[1854] EngR 564, (1854) 3 El and Bl 784, (1854) 118 ER 1335

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 15 May 2022; Ref: scu.293421

Bluck, On Behalf and Co v Mallalue: 15 Feb 1859

The directors of a loan company were empowered to borrow money, but clirectors who were ‘concerned in or participated in the profits of any contract with the company, vacated their offices. The chairman lent money to the company at high interest, which was afterwards lent out at a profit. Held, that this was warranted by the rules.
Discounting the bills of a director is a lending of money within a clause prohibiting loans to shareholders
Decree to compel directors in a joint stock company to take shares subscribed for by them, and which were transferable, refused.

Citations:

[1859] EngR 343, (1859) 27 Beav 398, (1859) 54 ER 156

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 15 May 2022; Ref: scu.287695