Demite Limited v Protec Health Limited; Dayman and Gilbert: CA 24 Jun 1999

Citations:

[1999] EWCA Civ 1668

Jurisdiction:

England and Wales

Citing:

Appeal fromDemite Ltd v Protec Health Ltd ChD 1998
A sale by a receiver potentially fell within the scope of section 320. The receivers were the agents of the company and their act was the company’s act. The section expressly excluded from its scoe an arrangement made in the course of a winding up . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 21 January 2023; Ref: scu.146583

Secretary of State for Trade and Industry v Bannister and Another: CA 26 Jul 1995

A court’s discretion to stay a disqualification order is to be used only in exceptional cases, but it does retain an has inherent power to stay disqualification of director pending an appeal.

Citations:

Independent 11-Aug-1995, Times 26-Jul-1995

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Company

Updated: 21 January 2023; Ref: scu.89121

In Re Manlon Trading Ltd: CA 22 Jun 1995

Company Director Disqualification proceedings were struck out for delay. There has to be a balance between the public interest in securing the disqualification of bad directors and the prejudice to private citizens and the people subject to the application process. Proceedings which are brought at the end of the two-year period are liable to be struck out, if there has been inordinate or inexcusable delay.
Staughton LJ said that ‘the public interest in the disqualification of unfit directors may . . have to yield to the lapse of time.’ The question he posed was ‘whether that public interest is outweighed by the requirements of justice in the particular circumstances of the particular case.’

Judges:

Staughton LJ

Citations:

Times 22-Jun-1995, [1995] 1 BCLC 578

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re Manlon Trading Ltd ChD 15-Aug-1994
A different approach is required on striking out in Company Director Disqualification proceedings. . .

Cited by:

CitedEastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
CitedSecretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 21 January 2023; Ref: scu.82043

Newborne v Sensolid (Great Britain) Ltd: 1954

A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. Mr Newborne attempted to enforce the contract as one to which he was party.
Held: This was inconsistent with the description of the party in the contract.
Lord Goddard CJ: ‘In my opinion, unfortunate though it may be, as the company was not in existence when the contract was signed there never was a contract, and Mr Newborne cannot come forward and say: ‘Well, it was my contract.’ The fact is, he made a contract for a company which did not exist.’ The contract purported to be a contract with the company and it was not relevant that, as was the case, it was a matter of indifference to the purchasers whether they contracted with the company, or with Mr Newborne personally.

Judges:

Lord Goddard CJ, Morris LJ

Citations:

[1954] 1 QB 45, [1953] 1 All ER 708

Jurisdiction:

England and Wales

Citing:

Well establishedSchmaltz v Avery 1851
An agent who signed a charterparty containing a cesser clause purportedly as agent for an unidentified principal could show that he was himself the principal and could sue on the contract, on the grounds that it was irrelevant to the third party who . .

Cited by:

CitedShogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
CitedPhonogram Ltd v Lane CA 1982
A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 20 December 2022; Ref: scu.188460

Mauthoor v THF Delap and Associates Limited: CA 2 Oct 1995

The parties agreed for the transfer of shares. The payment cheque was not honoured. The appellant first claimed an absence of consideration, then sought to amend her defence to say that she had acted under economic duress. Threats had been made as to the sale of the company and actions which would threaten the vue of the company. The amendment was not allowed. She appealed.
Held: Courts set out to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases. Whether an amendment should be granted is in the trial judge’s discretion, guided by his assessment of where justice lays. In this case the discretion had not been wrongly exercised.

Judges:

Lord Justice Staughton Lord Justice Swinton Thomas Lord Justice Judge

Citations:

[1995] EWCA Civ 5

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCropper v Smith CA 1883
Bowen LJ: ‘Now it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their . .
CitedKetteman v Hansel Properties Ltd HL 1987
Houses were built on defective foundations. The purchasers sued the builders and later the architects who designed them. The defendants argued that the houses were doomed from the start so that the cause of action accrued, not when the physical . .

Cited by:

CitedAli v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 20 December 2022; Ref: scu.140364

Danemark Limited v BAA Plc: CA 16 Oct 1995

The defendant had obtained an order or additional security for costs against the defendant company (registered with andpound;100 share capital) under the section. It appealed. There was evidence to suggest some fraud by the plaintiff, but also that there was a genuine claim. The court had a difficult balance to draw between stifling a proper claim by a small company and putting the defendant at risk of incurring costs the plaintiff could not meet. The judge had erred, and the security order was vacated.

Citations:

[1995] EWCA Civ 6

Links:

Bailii

Statutes:

Companies Act 1985 726(1)

Jurisdiction:

England and Wales

Citing:

AppliedKeary Developments v Tarmac Constructions CA 1995
The court set out the principles to be applied by the court upon an application for security for costs.
1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant . .
Lists of cited by and citing cases may be incomplete.

Company, Costs, Litigation Practice

Updated: 20 December 2022; Ref: scu.140365

The Republic of Uganda v Rift Valley Railways (Uganda) Ltd: ComC 26 Feb 2021

The Claimant sought under s. 67 Arbitration Act 1996 the setting aside of a decision of the arbitral panel in a London-seated arbitration, together with declarations as to the lack of standing of what it described as the former management of the Defendant company to manage and control that company.

Judges:

Mr Justice Butcher

Citations:

[2021] EWHC 970 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Arbitration

Updated: 20 December 2022; Ref: scu.662349

Crabtree v Ng: CA 21 Mar 2012

The parties disputed the valuation of shares they held.

Judges:

Lord Neuberger MR, Hallett, Stanley Burnton LJJ

Citations:

[2012] EWCA Civ 333

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedParkinson v Euro Finance Group Ltd 2001
In a dispute between co-owners of company shares, a share was to be valued on the basis of its value ‘ to the co-owner of the Company, and not an open market value’. . .
CitedCVC/Opportunity Equity Partners Limited and Opportunity Invest II Limited v Luis Roberto Demarco Almeida PC 21-Mar-2002
(Cayman Islands) The respondent was a minority shareholder. An offer was made to buy out his interest. He petitioned for the winding up of the company on the just and equitable ground. The claimants obtained an injunction to prevent him doing so, . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 20 December 2022; Ref: scu.452195

Barclays Bank Plc and Others v British and Commonwealth Holdings Plc: CA 10 Aug 1995

A company remained liable in damages for a breach of a covenant to redeem its own shares despite the obligations under the section making the failure to redeem the shares itself not actionable.

Citations:

Independent 25-Aug-1995, Times 10-Aug-1995, Gazette 13-Sep-1995

Statutes:

Companies Act 1985 178(3)

Jurisdiction:

England and Wales

Company

Updated: 20 December 2022; Ref: scu.78188

Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3): CA 2 Nov 1995

The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any case which involves a foreign element it may prove necessary to decide what system of law is to be applied, either to the case as a whole or to a particular issue or issues. Mr. Oliver, for Macmillan Inc., has referred to that as the proper law; but I would reserve that expression for other purposes, such as the proper law of a contract, or of an obligation. Conflict lawyers speak of the lex causae when referring to the system of law to be applied. For those who spurn Latin in favour of English, one could call it the law applicable to the suit (or issue) or, simply, the applicable law.
In finding the lex causae there are three stages. First, it is necessary to characterise the issue that is before the court. Is it for example about the formal validity of a marriage? Or intestate succession to moveable property? Or interpretation of a contract?
The second stage is to select the rule of conflict of laws which lays down a connecting factor for the issue in question. Thus the formal validity of a marriage is to be determined, for the most part, by the law of the place where it is celebrated; intestate succession to moveables, by the law of the place where the deceased was domiciled when he died; and the interpretation of a contract, by what is described as its proper law.
Thirdly, it is necessary to identify the system of law which is tied by the connecting factor found in stage two to the issue characterised in stage one. Sometimes this will present little difficulty, though I suppose that even a marriage may now be celebrated on an international video link. The choice of the proper law of a contract, on the other hand, may be controversial.’
Auld LJ said: ‘Subject to what I shall say in a moment, characterisation or classification is governed by the lex fori. But characterisation or classification of what? It follows from what I have said that the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and defence. This requires a parallel exercise in classification of the relevant rule of law. However, classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between competing legal systems, should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system. Nor should the issue be defined too narrowly so that it attracts a particular domestic rule under the lex fori which may not be applicable under the other system: see Cheshire and North’s Private International Law , 12th ed., pp. 45-46, and Dicey and Morris , vol. 1, pp. 38-43, 45-48.’ (p. 407 B/D)
‘I agree with the judge when he said [1995] 1 W.L.R. 978, 988: ‘In order to ascertain the applicable law under English conflict of laws, it is not sufficient to characterise the nature of the claim: it is necessary to identify the question at issue.’ Any claim, whether it be a claim that can be characterised as restitutionary or otherwise, may involve a number of issues which may have to be decided according to different systems of law. Thus it is necessary for the court to look at each issue and to decide the appropriate law to apply to the resolution of that dispute.’

Judges:

Auld, Staughton LJJ

Citations:

Ind Summary 11-Dec-1995, Gazette 29-Nov-1995, Times 07-Nov-1995, [1996] 1 WLR 387, [1995] EWCA Civ 55, [1996] 1 All ER 585

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
CitedNorris v Chambres 1861
A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to . .

Cited by:

CitedKnight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .
CitedCox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
CitedRaffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
CitedGorjat v Gorjat ChD 29-Jun-2010
The claimant, daughters of the deceased by his first marriage challenged a transfer of a significant sum by their father before his death, saying that he lacked mental capacity. . .
Lists of cited by and citing cases may be incomplete.

International, Company

Updated: 20 December 2022; Ref: scu.83285

Steans Fashions Ltd and Another v Legal and General Assurance Society Ltd: CA 31 Dec 1994

A company could be re-instated to the companies register retrospectively for the purposes of a court action. The case was suspended, and not to be struck-out, pending that re-instatement.

Citations:

Gazette 08-Feb-1995, Times 31-Dec-1994

Statutes:

Companies Act 1985 653

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 20 December 2022; Ref: scu.89523

4 Eng Ltd v Harper and Another: ChD 29 Apr 2008

The claimant sought damages for deceit in the purchase of shareholdings fropm the defendants. The defendants objected that the damages claimed were for a loss of chance and were irrecoverable.
Held: Such damages might be recoverable in an action for deceit. Though there was no previous case directly on the point, there was no reason in principle why such a claim might not be made.

Judges:

David Richards J

Citations:

[2008] EWHC 915 (Ch), Times 23-Jun-2008, [2008] Bus LR 1698, [2009] Ch 91, [2008] 3 WLR 892

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedEast v Maurer CA 1991
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.

Company, Contract, Damages

Updated: 12 December 2022; Ref: scu.270459

Smith v Gale: ChD 1974

Three solicitors were in partnership. It was agreed that one would retire. He would take 10,000 pounds on retirement and his share of undrawn profits after an account had been taken. When the accountant certified the profits in line with previous partnership practice, the other partners objected to the sum payable, saying undrawn profits had been appropriated for the purchase of capital assets. New accounts were drawn reflecting this. The retiring partner objected to the result, saying the accountant had already given his certificate under the agreement, and sought a declaration as to what sum was payable. The other partners said that the accountant having given his certificate, the court had no jurisdiction to make any order.
Held: There had been no agreement for the second certificate, and the retiring partner was not bound by it. The court had full jurisdiction to make the declaration sought, and would exercise its discretion to make it in order to avoid leaving the retiring partner with no relief without a new certificate. There was no way of restoring the position. Once the error of principle was properly established it would be possible to establish from the draft accounts what sum would properly be certifiable.

Judges:

Goulding J

Citations:

[1974] 1 All ER 401, [1974] 1 WLR 9

Jurisdiction:

England and Wales

Citing:

CitedFrank H Wright (Contractors) Ltd v Frodoor Ltd 1967
There was an error on the face of the certifcate of an accountant. The court looked at when it might go behind the certificate of an accountant on a question referred to him by agreement of the parties.
Held: In this case the error was . .
CitedDean v Prince 1953
An auditor had valued the shares in a private company under its articles. The court was asked to look behind the valuation: ‘In my judgment the valuation cannot stand. I propose, therefore, to declare that the valuation is not binding upon the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 12 December 2022; Ref: scu.238764

In 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 documents lies, thus, not in a limitation by category of documents (‘reconstituting the company’s state of knowledge’) but in the fact that the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. A proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirement. An application is not necessarily unreasonable because it is inconvenient for the addressee of the application or causes him a lot of work or may make him vulnerable to future claims or is addressed to a person who is not an officer or employee of or a contractor with the company in administration, but all these will be relevant factors, together no doubt with many others.’
and: ‘the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. The proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirements.’

Judges:

Lord Slynn

Citations:

[1993] AC 426, [1992] 4 All ER 876, [1992] 3 WLR 853

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Cited by:

CitedOfficial Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
CitedGreen 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 December 2022; Ref: scu.186362

In re Saul D Harrison and Sons plc: CA 1995

The ‘legitimate expectations’ of a party were a label for the ‘correlative right’ to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power conferred upon them by the articles to the prejudice of another member. Depriving a shareholder of his legitimate expectation of involvement in the company can be sufficient to amount to unfair conduct prejudicial to the shareholder. Conduct might be technically unlawful without being unfair and also unfair without being technically unlawful.
Neill LJ said: ‘For the purpose of determining the legal rights of the petitioner one turns to the memorandum and articles of the company because the articles constitute the contract between the company and the member in respect of his rights and liabilities as a shareholder. Furthermore, it is to be remembered that the management of a company is entrusted to the directors, who have to exercise their powers in the interests of the company as a whole. A shareholder can legitimately complain, however, if the directors exceed the powers vested in them or exercise their powers for some illegitimate or ulterior purpose.’ and
‘The [relevant] conduct must be both prejudicial (in the sense of causing prejudice or harm to the relevant interest) and also unfairly so: conduct may be unfair without being prejudicial or prejudicial without being unfair, and it is not sufficient if the conduct satisfies only one of these tests . . On the facts of this case, the court decided that the petitioners did not show that they had suffered any unfair prejudice by reason of the breaches of duty by the directors. In the same vein, the presence or absence of loss is a significant factor to be taken into account in relation to the alleged breaches of the Agreement.’
Hofmann LJ said: ”Unfairly prejudicial’ is deliberately imprecise language which was chosen by Parliament because its earlier attempt in s 210 of the Companies Act 1948 to provide a similar remedy had been too restrictively construed. The earlier section had used the word ‘oppressive’, which the House of Lords in Scottish Co-op Wholesale Society Ltd v Meyer [1958] 3 All ER 66, [1959] AC 324, [1958] 3 WLR 404 said meant ‘burdensome, harsh and wrongful’. This gave rise to some uncertainty as to whether ‘wrongful’ required actual illegality or invasion of legal rights. The Jenkins Committee on Company Law, which reported in 1962, thought that it should not. To make this clear, it recommended the use of the term ‘unfairly prejudicial’, which Parliament somewhat tardily adopted in s 75 of the Companies Act 1980. This section is reproduced (with minor amendment) in the present s 459 of the Companies Act 1985.’ It is now further reproduced in section 994.’ and ‘In deciding what is fair or unfair for the purposes of s.459, it is important to have in mind that fairness is being used in the context of a commercial relationship. The articles of association are just what their name implies: the contractual terms which govern the relationship of the shareholders with the company and each other. They determine the powers of the board and the company in general meeting and everyone who becomes a member of a company is taken to have agreed to them. Since keeping promises and honouring agreements is probably the most important element of commercial fairness, the starting point in any case under s.459 will be to ask whether the conduct of which the shareholder complains was in accordance with the articles of association.’

Judges:

Hofmann LJ, Neill LJ

Citations:

[1995] 1 BCLC 14

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

CitedO’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
CitedArrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
CitedKohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
CitedRe BSB Holdings Ltd; London Merchant Securities Plc v Chargeurs Sa and Others ChD 2-Aug-1995
Protection of minority shareholders was not to be used to impede the proper management of a company’s affairs. Directors must act in the company’s overall best interests despite prejudice to one class of shareholders.
Arden J said: ‘However, in . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 12 December 2022; Ref: scu.183152

Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited): CA 27 Feb 2004

The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a loss of chance, the root question was what damages had followed. The Appeal was allowed in part. A defendant should be disallowed from relying upon a wrong he had himself committed to reduce the damages which might otherwise flow.

Judges:

Lord Justice Laws Lord Justice Waller Lord Justice Carnwath

Citations:

[2004] EWCA Civ 215, Times 24-Mar-2004, Gazette 01-Apr-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromNormans Bay Limited (Formerly Illingworth Morris Limited) v Coudert Brothers (A Firm) QBD 19-Feb-2003
The claimant instructed the defendant firm to act in advising in support of an investment in Russia. The investment was declared invalid in the courts of Russia, and the claimant said that the defendant should have forewarned them of the problem, . .
CitedHotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedChaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
CitedKitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
CitedGregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
CitedBolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
CitedGoode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
CitedFairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .

Cited by:

CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, Professional Negligence, Damages

Updated: 12 December 2022; Ref: scu.194076

International Bulk Shipping and Services Ltd v President of India and Another: CA 11 Dec 1995

Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had persuaded the arbitrators that the companies were the proper claimants and had commenced the enforcement actions on the same basis. His decision to do so was intended to avoid the possibility that set-offs would be raised in respect of debts owed by associated ship-owning companies if he sued in his own name. When he started the actions, however, the companies had been wound up and thus ceased to exist. The trustee applied, after the limitation period had expired, to have his name substituted for those of the companies pursuant to O. 20 r 5.
Held: Proceedings under name of a dissolved company cannot be revived after limitation period by trustee. Appeal denied.
Evans LJ said: ‘The rule refers to ‘the party intending to sue or.. intended to be sued’. When it is said that the wrong plaintiff has been named, this must be taken as reference to the intention of persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee or the bankruptcy estate. They were mistaken in thinking that the companies were still in existence and entitled to sue. If they had known the true facts, they would or might well have named the trustee or the bankruptcy estate as sole plaintiff or as a co-plaintiff. But that was a decision as to who the plaintiffs should be, and no doubt for good reasons they chose to assert the companies’ rights under the awards, rather than whatever rights the trustee or the bankrupt estates had acquired.
The rule envisages that the writ was issued with the intention that a specific person should be the plaintiff. That person can often but not invariably be identified by reference to a relevant description. The choice of identity is made by the persons who bring the proceedings. If having made that choice they use the wrong name, even though the name they sue may be that of a different legal entity, then their mistake as to the name can be corrected. But they cannot reverse their original identification of the party who is to sue. This interpretation of the rule derives not only from the phrase ‘correct the name of the party’ but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue.’

Judges:

Evans LJ

Citations:

Ind Summary 11-Dec-1995, [1996] 2 Lloyd’s Rep 474, [1996] 1 All ER 1017

Jurisdiction:

England and Wales

Citing:

AffirmedInternational Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India ComC 16-Feb-1994
cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder . .

Cited by:

CitedAdelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 09 December 2022; Ref: scu.82399

Jonathan Alexander Ltd v Proctor: CA 19 Dec 1995

A company represented in proceedings by a director is not a litigant in person, and therefore has no expenses or costs claimable from the other party.
Hirst LJ said: ‘. . the ordinary meaning, as I understand it, of the description ‘litigant in person’, viz an unrepresented individual’.
Peter Gibson LJ said: ‘A litigant in person in ordinary parlance is a party to litigation who represents himself by appearing in court himself. If someone other than himself represents him, then notwithstanding that that other person is his agent, that party is not a litigant in person’.

Judges:

Hirst LJ, Peter Gibson LJ

Citations:

Times 03-Jan-1996, Ind Summary 22-Jan-1996, [1996] 1 WLR 518

Statutes:

Litigants in Person (Costs and Expenses) Act 1975, County Court Rules 1981 Order 38 r17

Jurisdiction:

England and Wales

Cited by:

DistinguishedAndre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Lists of cited by and citing cases may be incomplete.

Company, Costs

Updated: 09 December 2022; Ref: scu.82579

Re Sam Weller and Sons Ltd: 1990

Citations:

[1990] Ch 682

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

CitedHill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 December 2022; Ref: scu.244175

Re Rw Peak (Kings Lynn) Ltd: CA 12 May 1999

All shareholders agreed for the company’s purchase of one’s shares. One said this was void, that the formalities had not been followed, the company said all the shareholders agreed. The court held the formalities protected others also; the deal was void.

Citations:

Gazette 12-May-1999, [1998] 1 BCLC 193

Statutes:

Companies Act 1985 143, 164

Jurisdiction:

England and Wales

Company

Updated: 07 December 2022; Ref: scu.85861

Hellard and Another v Registrar of Companies and Others: ChD 23 Jun 2020

The claimant sought the restoration of 31 companies to the register, so as to be appointed liquidator and to investigate possible claims against former officeholders.

Judges:

ICC Judge Barber

Citations:

[2020] EWHC 1561 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 1069

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 07 December 2022; Ref: scu.652120

Ben Hashem v Ali Shayif and Another: FD 22 Sep 2008

The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The common theme running through all the cases in which the court has been willing to pierce the veil is that the company was being used by its controller in an attempt to immunise himself from liability for some wrongdoing which existed entirely dehors the company. It is therefore necessary to identify the relevant wrongdoing – in Gilford and Jones v Lipman it was a breach of contract which, itself, had nothing to do with the company, in Gencor and Trustor it was a misappropriation of someone else’s money which again, in itself, had nothing to do with the company – before proceeding to demonstrate the wrongful misuse or involvement of the corporate structure. But in the present case there is no anterior or independent wrongdoing. All that the husband is doing, in the circumstances with which he is now faced – the wife’s claim for ancillary relief – is to take advantage, in my judgment legitimately to take advantage, of the existing corporate structure and, if one chooses to put it this way, to take advantage of the principle in Salomon.’

Judges:

Munby J

Citations:

[2008] EWHC 2380 (Fam), [2008] Fam Law 1179, [2009] 1 FLR 115

Links:

Bailii

Statutes:

Family Proceedings Rules 1991, Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Citing:

CitedA v A FD 29-Jan-2007
Munby J referred to the robust approach which had always been adopted in the Family Division in seeing through sham arrangements designed to hide the ownership of assets of the marriage by vesting them in relatives or companies which were in reality . .
CitedA v A (Maintenance Pending Suit: Provision for Legal Fees) FD 15-Nov-2000
An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to . .
CitedTrustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
CitedRe Shephard, Shephard v Cartwright HL 1-Dec-1954
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from . .
CitedSnook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
CitedF v F (Divorce: Insolvency: Annulment of Bankruptcy Order) FD 1994
Thorpe J, having conducted a detailed analysis of the evidence, concluded ‘that the husband has, in my judgment, so obfuscated his financial position and services that it is quite impossible for this court to be sure as to what he has now in . .
CitedThomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
CitedRe W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
CitedAl-Khatib v Masry FD 2002
The court heard an application for an ancillary relief order in divorce proceedings.
Held: General reputation prevailing in the community, and the mere opinions, inferences or beliefs of witnesses, are inadmissible in proof of material facts. . .
CitedJ v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
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 . .
CitedLee v Lee’s Air Farming Limited PC 11-Oct-1960
Mr Lee had formed a company, Lee’s Air Farming Limited and held nearly all its shares. He was the managing director, but by profession a pilot. The company was formed to conduct an aerial top-dressing business. He appointed himself the chief pilot . .
CitedWilliams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
CitedWhig v Whig FD 23-Jul-2007
The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy. . .
CitedMacaura v Northern Assurance Company Limited HL 1925
Macaura owned the large majority of shares in a limited company, trading in timber. The company also owed him substantial sums. He kept on the insurance of timber and other assets within the business but in his own name. When he came to claim, his . .
CitedRe Shephard, Shephard v Cartwright HL 1-Dec-1954
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from . .
CitedTribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
CitedHussey v Palmer CA 22-Jun-1972
A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house.
Held: lord Denning MR . .
CitedPettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
CitedGilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
CitedRe Bugle Press Ltd ChD 1961
Two shareholders held more than 90% of the issued shares of the company. To get rid of the holder of the remaining shares, they incorporated another company for the purpose of acquiring all the shares of the company. The acquiring company offered to . .
CitedJones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
CitedDadourian Group International Inc and others v Simms and others ChD 24-Nov-2006
The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are . .
CitedMubarak v Mubarak FD 23-Oct-2000
The court had made an order for payment by H to W on the divorce, and was now asked whether W could take jewelry held by H’s company in part satisfaction of the capital sums due. . .
CitedGencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
CitedYukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
CitedWallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
CitedGreen v Green FD 1993
In an ancillary relief application, Connell J awarded to the wife assets vested in a limited company whose entire share capital was owned by the husband. . .
CitedAdams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
CitedGencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
CitedN v N and Another FD 16-Dec-2005
. .
CitedBosworthick v Bosworthick CA 1927
An annuity secured by a bond was found to be a settlement. . .
CitedSmith v Smith 1945
Denning J said: where a husband makes a continuing provision for the future needs of his wife in her character as a wife, which is still continuing when the marriage is dissolved, the provision is a `settlement’ which can be brought before the court . .
CitedLort-Williams v Lort-Williams CA 1951
two individuals had taken out a single premium insurance policy on the life of Sir John Rolleston Lort-Williams. The benefits were payable to these trustees as ‘moneys payable under this policy, effected for the benefit of the widow or children or . .
CitedSmith v Smith CA 1970
The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the . .
CitedBrooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
CitedC v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .
CitedCharalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
CitedDormer v Ward CA 1901
One of the assets included in the marriage settlement was a jointure rent-charge charged on certain specified hereditaments. The CA considered whether what was brought into the settlement so as to be amenable to the court’s statutory jurisdiction . .
CitedBlood v Blood 1902
Gorell Barnes J, considered the ambit of section 5 of the 1859 Act, and said: ‘Those words are extremely wide, and I am anxious that they should not, by any construction the Court may put upon them, be narrowed in any way. To narrow them would be . .
CitedPrescott v Fellowes CA 1958
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a . .
CitedPrinsep v Prinsep 1929
Hill J considered what is meant by a nuptial settlement: ‘Is it upon the husband in the character of husband or in the wife in the character of wife, or upon both in the character of husband and wife? If it is, it is a settlement on the parties . .
CitedIn Re Hunter and Hewlett’s Contract 1907
A moiety of a freehold was settled during the life of the trustees and the survivor of them for the benefit of the two daughters of the settlor, their husbands and issue. The reversion in fee expectant remained with the settlor. It was common ground . .
CitedHargreaves v Hargreaves 1926
The marriage settlement included an annual sum of pounds 500 appointed by the settler. The question was whether there was any property settled other than the pounds 500.
Held: There was not: ‘to my mind, the property settled is not the whole . .
CitedHartopp v Hartopp and Akhurst 1899
Gorell Barnes J said: ‘Now the guiding principle which will be found running through the cases is, in my opinion, this: Where the breaking up of the family life has been caused by the fault of the respondent, the Court, exercising its powers under . .
CitedWhitton v Whitton 1901
Sir Francis Jeune P said: ‘But one has in these cases to consider what is really for the benefit of the children, because I think the authorities shew that nothing must be done that on the whole would be for the disadvantage of the children. This . .
CitedCartwright v Cartwright 1983
Sheldon J said: ‘when considering the financial background of the parties, the standard of life that they and the children have been accustomed to, and that the children will undoubtedly continue to enjoy while living with [their mother], I am of . .
CitedPurnell v Purnell 1961
Cairns J considered a request for the variation of a post-nuptial trust and said: ‘Now it is well established by authority that the variation may be such as to confer a benefit on a stranger to the settlement provided it also confers a benefit on . .
CitedGarforth-Bles v Garforth-Bles 1951
Pearce J said: ‘It is, in my view, to the child’s interest in another respect to allow the husband to remove a part of his fund from the settlement. He brought into the settlement reversions that were substantially all that he possessed; he now has, . .
CitedEgerton v Egerton 1949
The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle . .
CitedColclough v Colclough and Fisher 1933
Any variation of a post-nuptial settlement should be addressed so as to place the parties in the same position as if the marriage had not come to an end. . .

Cited by:

See AlsoHashem v Shayif and Another FD 17-Apr-2009
. .
See AlsoHashem v Shayif and Others CA 22-Jul-2009
. .
CitedLaw Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .
CitedLindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
CitedVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
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.

Family, Company, Equity

Updated: 07 December 2022; Ref: scu.278557

Woolfson v Strathclyde Regional Council: HL 15 Feb 1978

The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
Held: The House declined to allow the principal shareholder of a company to recover compensation for the compulsory purchase of a property which the company occupied. the separate personality of a company is a real thing. Lord Keith observed that ‘it is appropriate to pierce the corporate veil only where special circumstances exist indicating that it is a mere facade concealing the true facts.’
Where the evidence shows that a company has been used as a vehicle or device for receiving monies wrongly paid out of a claimant company in breach of a defendant’s duty to that company, the receipt by the third party vehicle will be treated as the receipt by the defendant.

Judges:

Wilberforce, Fraser of Tulleybelton, Killowen, Kinkel LL

Citations:

[1978] UKHL 5, [1979] JPL 169, (1978) 248 EG 777, 1978 SC (HL) 90, 1978 SLT 159, (1979) 38 P and CR 521

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

AppliedAdams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
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.

Land, Company

Updated: 07 December 2022; Ref: scu.279742

Dadourian Group International Inc and others v Simms and others: ChD 24 Nov 2006

The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are in themselves insufficient to dislodge the principle of separate corporate identity. In order to justify lifting the veil of incorporation, ‘special circumstances (must) exist indicating that (the company) is a mere facade concealing the true facts’

Judges:

Warren J

Citations:

[2006] EWHC 2973 (Ch), [2006] ArbLR 18

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoDadourian Group Int Inc v Simms and others (No 1) CA 11-Apr-2006
The court was asked to consider how it should exercise its discretion to order a world-wide asset freezing order.
Held: It dismissed the appeal in this case, but took the opportunity to provide eight guidelines for the way in which the . .

Cited by:

Appeal fromDadourian Group International Inc and others v Simms and others CA 20-Dec-2006
The court considered the exercise by the court of its discretion to release a party who has obtained a freezing order from his undertaking not to use information obtained from the party against whom the freezing order is made in contempt proceedings . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration, Company

Updated: 07 December 2022; Ref: scu.246809

Secretary of State for Trade and Industry v Elms: 16 Jan 1997

‘At the forefront of the test I think I have to go on to consider by way of further analysis both what Millett J meant by ‘functions properly discharged only by a director’, and Mr Lloyd QC meant by ‘on an equal footing’. As to one it seems to me clear that this cannot be limited simply to statutory functions and to my mind it would mean and include any one or more of the following: directing others, putting it very compendiously, committing the company to major obligations, and thirdly (really I think what we are concerned with here) taking part in an equally based collective decision process at board level, i.e. at the level of a director in effect with a foot in the board room. As to Mr Lloyd’s test, I think it is very much on the lines of that third test to which I have just referred. It is not, I think, in any way a question of equality of power but equality of ability to participate in the notional board room. Is he somebody who is simply advising and, as it were, withdrawing having advised, or somebody who joins the other directors, de facto or de jure, in decisions which affect the future of the company?’

Judges:

Judge Cooke

Citations:

Unreported 16 January 1997

Jurisdiction:

England and Wales

Citing:

CitedRe Hydrodam (Corby) Ltd 1994
Millett J described a de facto director as: ‘a person who assumes to act as a director. He is held out as a director by the company, claims and purports to be a director, although never actually or validly appointed as such. To establish that a . .

Cited by:

ApprovedSecretary of State for Trade and Industry v Tjolle and Others ChD 9-May-1997
Delay and the probable short period of disqualification are proper reasons for Secretary of State to consider discontinuing proceedings. As to whether a person ‘assumes to act as a director’: ‘It may be difficult to postulate any one decisive test. . .
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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 December 2022; Ref: scu.230269

George Barker Transport Ltd v Eynon: CA 1974

It was incontrovertible that ‘the appointment of a receiver operates as an equitable assignment (by way of charge) of the property of the company to the debenture holder.’

Judges:

Stamp LJ

Citations:

[1974] 1 WLR 462

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 December 2022; Ref: scu.230293

Re Forest of Dean Mining Co: 1878

Jessel MR said: ‘Again, directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company. The company is the creditor, and, as I said before, they are only the managing partners. In my opinion it is extravagant to call them trustees of a debt when it has not been received. You may of course have an actual trust of a debt, as in the case I put before, where trustees have assigned to them a debt to get in, but that is not the case with directors of a company. A director is the managing partner of the concern, and although a debt is due to the concern I do not think it is right to call him a trustee of that debt which remains unpaid, though his liability in respect of it may in certain cases and in some respects be analogous to the liability of a trustee.’

Judges:

Jessel MR

Citations:

(1878) LR 10 Ch 450

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 December 2022; Ref: scu.230267

Re Bugle Press Ltd: ChD 1961

Two shareholders held more than 90% of the issued shares of the company. To get rid of the holder of the remaining shares, they incorporated another company for the purpose of acquiring all the shares of the company. The acquiring company offered to purchase the company’s shares at a proper value. The majority shareholders accepted the offer but it was refused by the minority shareholder. The acquiring company gave notice of intention to exercise the statutory power of compulsory acquisition under the section. The minority shareholder applied that the transferee company was neither entitled nor bound to acquire his shares on the terms offered notwithstanding the approval of 9/10ths of the shareholders. The minority said the offer undervalued his shares. The majority shareholders did not file any evidence verifying their valuation.
Held: The court made the declarations sought. In circumstances where the assenting 90% majority were unconnected with the offeror the normal burden of proof rested on the dissenting minority to show grounds why the court should ‘order otherwise’, but that did not apply where there was a connection between the assenting majority and the offeror, in particular, where the acquiring company was simply the alter ego of the assenting majority. As to a submission that the respondent’s use of section 209 was contrary to the purpose of the section: ‘I am bound to say that I see very great force in that argument. Whether, in such a case, if the court were fully satisfied that the price offered to the minority shareholders was a fair price to be offered for their shares, the section ought to be allowed to operate according to its tenor is, I think, a matter which it is unnecessary for me to decide today because, in my view, on the facts of this particular case, at any rate, the onus must rest on Mr Instone’s clients [the majority shareholders] to satisfy the court that the price offered is a fair price. In the ordinary case of an offer under this section, where the 90 % majority who accept the offer are unconnected with the persons who are concerned with making the offer, the court pays the greatest attention to the views of that majority.
This case, however, seems to me to be quite the reverse of that, because here, although as a matter of law the body making the offer must be regarded as distinct from the persons who hold shares in that body, nevertheless as a matter of substance the persons who are putting forward this offer are the majority shareholdersIn a case of this kind it seems to me that the onus must clearly be on the other side, and that it must be incumbent on the majority shareholders to satisfy the court that the scheme is one with which the minority shareholder ought reasonably to be compelled to fall in with.’ The acquiring company had not discharged that burden.
Harman LJ described the company as ‘nothing but a little hut built around’ the shareholders and their scheme a ‘hollow sham.’

Judges:

Buckley J, Harman LJ

Citations:

[1961] Ch 270

Statutes:

Companies Act 1948 209

Jurisdiction:

England and Wales

Cited by:

Appeal fromRe Bugle Press Ltd CA 2-Jan-1961
Shareholders with over 90% of the issued shares sought to acquire the remaining shares, and create another company to do so. That company offered to purchase the shares at a valuation. The majority shareholders accepted but the minority shareholder . .
CitedIn the Matter of British American Racing (Holdings) Limited; In the Matter of the Insolvency Act 1986 ChD 16-Dec-2004
The company raced in the Formula 1 series. Its main sponsors had been British American Tobacco, but because of restrictions of tobacco advertising, the company lost substantial revenue and fell in to loss, and entered into an individual voluntary . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 December 2022; Ref: scu.221021

Nicholas v Nicholas: CA 1984

The Court upheld an appeal against an order for the husband to procure the transfer to the wife of a property belonging to a company in which he held a 71% shareholding, the other 29% being held by his business associates. However, both members of the court suggested, obiter, that the result might have been different had it not been for the position of the minority shareholders.
Cumming-Bruce LJ thought that, in that situation: ‘the court does and will pierce the corporate veil and make an order which has the same effect as an order that would be made if the property was vested in the majority shareholder.’
Dillon LJ said: ‘if the company was a one-man company and the alter ego of the husband, I would have no difficulty in holding that there was power to order a transfer of the property.’

Judges:

Cumming-Bruce and Dillon LJJ

Citations:

[1984] FLR 285

Jurisdiction:

England and Wales

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 . .
CitedThomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
CitedRe W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 07 December 2022; Ref: scu.223621

Green v Green: FD 1993

In an ancillary relief application, Connell J awarded to the wife assets vested in a limited company whose entire share capital was owned by the husband.

Judges:

Connell J

Citations:

[1993] 1 FLR 326

Statutes:

Matrimonial Causes Act 1973 37

Jurisdiction:

England and Wales

Cited by:

CitedMcGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
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 . .
CitedThomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 07 December 2022; Ref: scu.223624

Fayed v United Kingdom: ECHR 6 Oct 1994

The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb of article 6(1) to complain that they had been denied effective access to the courts to challenge the determination made against them.
Held: Department of Trade and Industry inspectors are investigators not adjudicators. The absence of a remedy in court, against their report, was not a breach of the Convention. The basic principle underlying article 6(1) is that ‘civil claims must be capable of being submitted to a judge for adjudication.’ ‘It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or the remedy.’ and ‘The Inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter’s civil right to honour and reputation. . . the object of the proceedings before the Inspectors was not to resolve any dispute (contestation) . . . In short, it cannot be said that the Inspectors’ inquiry ‘determined’ the applicants’ civil right to a good reputation, for the purposes of Article 6(1), or that its result was directly decisive for that right.’ The application failed.

Citations:

Independent 06-Oct-1994, Times 11-Oct-1994, 17101/90, [1994] ECHR 27, (1994) 18 EHRR 393

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Citing:

See AlsoSaunders v United Kingdom ECHR 30-Sep-1994
Link between self-incrimination and presumption of innocence – use of compulsion. . .

Cited by:

CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedR, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
CitedHolland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
CitedUzukauskas v Lithuania ECHR 6-Jul-2010
ECHR The applicant had a licence for a pistol and rifle. His was refused another licence, and then the existing licence was withdrawn. His name had been included in a police list in an operational records file . .
CitedG, Regina (on The Application of) v X School SC 29-Jun-2011
The claimant was employed as a teaching assistant. He was suspended after allegations of sexual misbehaviour with boy at the school. He refused to take part in the disciplinary proceedings until the police investigation was concluded. A decision was . .
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 . .
CitedBenkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
CitedReprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
Lists of cited by and citing cases may be incomplete.

Company, Human Rights

Updated: 07 December 2022; Ref: scu.80488

Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2): QBD 23 Sep 1997

Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce corporate veil – whether actionable conspiracy. A company creditor is owed no direct duty by a director putting his assets beyond the jurisdiction anticipating the company’s insolvency. In an unlawful means conspiracy, the unlawful act relied on must be actionable at the suit of the plaintiff: ‘As to an unlawful means conspiracy, Mr. Yamvrias undoubtedly owed a fiduciary duty to Rendsburg. Although he was not formally a director, he was a ‘shadow director’ and controlled the company’s activities.’ and ‘. . since Mr Yamvrias had effective control over Rendsburg, he would presumably have been in a position on behalf of the company to get back from himself that which he had caused to be paid for his benefit. It might in an appropriate case be within the scope of the Court’s Mareva jurisdiction to require a company, and its only effective officer, to do just that; but that has not been the subject of argument.’

Judges:

Justice Toulson

Citations:

Times 30-Oct-1997, [1998] 1 Lloyd’s Rep 322, [1998] 1 WLR 294, [1998] 4 All ER 82, [1998] 2 BCLC 485, [1998] BCC 870

Jurisdiction:

England and Wales

Citing:

Appealed toYukong Lines of Korea v Rendsburg Investments Corporation of Liberia CA 4-Jun-1998
. .
See AlsoYukong Lines v Rendsburg Investment Corporation CA 17-Oct-1996
An order for cross examination in an application for a Mareva order is exceptional, but permissible if it is just and convenient that such an order should be made. In applying the test of whether it would be ‘just and convenient’ to make the order, . .

Cited by:

CitedMahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Appeal fromYukong Lines of Korea v Rendsburg Investments Corporation of Liberia CA 4-Jun-1998
. .
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 . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 07 December 2022; Ref: scu.90681

BTI 2014 Llc v Sequana Sa and Others: ChD 11 Jul 2016

Allegation that the payment of dividends was in breach of Part 23 of the 2006 Act. The direcors had signed the necessary certificate as to solvency before resolving to reduce the company capital and paying a dividend.
Held: When making such a statement, the directors were not being asked what would be the position if a calamity occurred. The test was whether at the time and circumstances of the statement, and taking account of the anticipated contingencies, the company was solvent.
However, the payment of a dividend could be a transaction at an undervalue within section 423(1) of the 1986 Act.

Judges:

Rose J

Citations:

[2016] EWHC 1686 (Ch), [2016] WLR(D) 388, [2017] Bus LR 82

Links:

Bailii, WLRD

Statutes:

Companies Act 2006, Insolvency Act 1986 423(1)

Jurisdiction:

England and Wales

Cited by:

See AlsoBTI 2014 Llc v Sequana Sa and Others ChD 10-Feb-2017
Applications and orders following dismissal of principle claim. . .
Appeal fromBTI 2014 Llc v Sequana SA and Others CA 6-Feb-2019
The Court considered a Director’s duty to act in the interests of his company’s creditors. The Directors were said to have paid out an excessive dividend to put assets beyond the reach of its creditors. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 06 December 2022; Ref: scu.566875

Lehman Brothers International (Europe), Re Insolvency Act 1986: CA 6 Nov 2009

The insolvent company held assets for its clients. The liquidators proposed a scheme of arrangement which would allow them protection.
Held: The 2006 Act was to allow arrangements between a company and its creditors. The company’s former clients with proprietary interests which were held in trust for them by the company were not creditors. The court had no jurisdiction to sanction a scheme of arrangement which included those proprietary interests.

Judges:

Lord Neuberger of Abbotsbury, Master of the Rolls, Lord Justice Longmore and Lord Justice Patten

Citations:

Times 12-Nov-2009, [2009] EWCA Civ 1161

Links:

Bailii

Statutes:

Insolvency Act 1986, Companies Act 2006

Jurisdiction:

England and Wales

Citing:

Appeal fromLehman Brothers International (Europe) (No 2), Re ChD 21-Aug-2009
Parties said that assets of the insolvent company were held by it in trust for them.
Held: The court had no jurisdiction to sanction a scheme of arrangement proposed by the administrators between the company and former clients who had . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 06 December 2022; Ref: scu.377778

Progress Property Company Ltd v Moorgarth Group Ltd: CA 26 Jun 2009

What are the circumstances in which a sale of assets at an undervalue by a company to, or at the behest of, a shareholder in the company should be held ultra vires on the ground that, in substance, the sale is an unlawful distribution in disguise?

Judges:

Mummery, Toulson and Elias LJJ

Citations:

[2009] EWCA Civ 629, [2010] 1 BCLC 1, [2009] BPIR 1121, [2009] Bus LR 1535

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromProgress Property Company Ltd v Moorgarth Group Ltd SC 8-Dec-2010
The appellants appealed against rejection of their claim that there had been an unlawful distribution of capital when the appellant had sold the share capital of a subsidary at an undervalue to the respondent purchaser. The valuation had . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 December 2022; Ref: scu.347221

Davey v Shawcroft: 1948

The court was asked whether an agent of the committee of an unincorporated association, who was personally responsible for a breach of the licence terms, was properly convicted.
Held: Lord Goddard CJ said that section 19 meant that an unincorporated committee could be a licensed person for regulatory purposes under the Coal Distribution Order.

Judges:

Lord Goddard CJ

Citations:

[1948] 1 All ER 827

Statutes:

Interpretation Act 1889 19

Jurisdiction:

England and Wales

Cited by:

CitedRegina v RL and JF CACD 28-Aug-2008
Club, not members, prosecutable for breach
The Environment Agency appealed against dismissal of charges against the defendants who were officers in an unincorporated members’ golf club on whose land there had been pollution. The judge had ruled that the unincorporated association could have . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 06 December 2022; Ref: scu.277729

Re London School of Electronics: 1986

The court considered its powers under the section: ‘The combined effect of sub-ss (1) and (3) is to empower the court to make such order as it thinks fit for giving relief, if it is first satisfied that the affairs of the company are being or have been conducted in a manner which is unfairly prejudicial to the interests of some part of the members. The conduct of the petitioner may be material in a number of ways, of which the two most obvious are these. First, it may render the conduct on the other side, even if it is prejudicial, not unfair: cf Re RA Noble and Sons (Clothing) Ltd [1983] BCLC 273. Second, even if the conduct on the other side is both prejudicial and unfair, the petitioner’s conduct may nevertheless affect the relief which the court thinks fit to grant under sub-s (3). In my view there is no independent or overriding requirement that it should be just and equitable to grant relief or that the petitioner should come to the court with clean hands.’

Judges:

Nourse J

Citations:

[1986] Ch 211

Statutes:

Companies Act 1985 461(1)

Jurisdiction:

England and Wales

Cited by:

CitedGrace v Biagioli and others CA 4-Nov-2005
The petitioner complained that he had first been removed as director, and that the remaining directors had misdescribed the company’s profits and paid those profits to themselves as management expenses and in breach of a resolution requiring an . .
CitedBonham v Crow and others CA 13-Dec-2001
The petitioner complained of unfair prejudice in the way the company had been operated, and sought an order that his shares be bought out. However the judge found that the net value of the company was negative and the shares worthless. The judge had . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 December 2022; Ref: scu.234458

Re Conegrade Ltd: 2003

Lloyd J: ‘For my part, however, I do not see why, at any rate where there has been a meeting attended by all those who were entitled to attend and vote at a general meeting and that meeting has considered the matter and has resolved, in terms, that the company shall enter into the particular transaction, the fact that the minute is headed ‘board meeting’ rather than ‘general meeting’ and was not convened on the notice proper for a general meeting and was attended by a director who does not hold shares, should make it impossible to regard s 320 as having been satisfied.’

Judges:

Lloyd J

Citations:

[2003] BIPR 358

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 December 2022; Ref: scu.230294

Nanney v Morgan: 1888

A deed of transfer of shares did not pass the legal interest to the transferee until it was delivered to the secretary of the company. It was held that the transfer did not take effect until it had been left with the secretary and accepted by him. On the first occasion it was rejected because it was not properly stamped. The transfer had to be properly stamped in order to make the transfer effectual as between the company and the transferee. The legal title to the stock remained with the transferors until then. Accordingly, effectual delivery to the company is required

Citations:

(1888) 37 Ch D 346

Jurisdiction:

England and Wales

Cited by:

CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 December 2022; Ref: scu.183422

Rama Corporation Limited v Proved Tin and General Investment Limited: QBD 1952

The court considered the doctrine of ostensible authority as regards the actions of a single director of a company, identifying three essential elements.

Judges:

Slade J

Citations:

[1952] 2 QB 147

Jurisdiction:

England and Wales

Cited by:

CitedEllis Tylin Limited (Now Known As Dalkia Technical Services Limited v Co-Operative Retail Services Limited TCC 8-Mar-1999
The claimant entered into a contract to provide maintenance to the defendant’s plant. Agents of the defendant did not have authority to enter in to a contract on their behalf. The contract was repudiated by the claimants in ceasing work, and that . .
CitedHill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 06 December 2022; Ref: scu.181229

Fairline Shipping Corp v Adamson: 1975

The plaintiffs sued the defendant, a director of a warehousing company, for the negligent storage of perishable goods. The contract was between the plaintiff and the company.
Held: The director was personally liable, because he wrote to the customer, and rendered an invoice, creating the clear impression that he was personally answerable for the services. If he had chosen to write on company notepaper, and rendered an invoice on behalf of the company, the necessary factual foundation for finding an assumption of risk would have been absent.

Citations:

[1975] Q B 180

Jurisdiction:

England and Wales

Company

Updated: 06 December 2022; Ref: scu.180463

Oyston and Another v Rubin and Another: ChD 19 Jun 2020

Judges:

Clark M

Citations:

[2020] EWHC 1726 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoOyston and Another v Rubin and Another ChD 10-Feb-2021
. .
See AlsoOyston and Another v Rubin and Another ChD 4-May-2021
. .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 05 December 2022; Ref: scu.652228

Re PTZFM Ltd: 1995

It had been alleged that a lender had become a shadow director of the borrower company. As to the statutory definition of ‘shadow director’: ‘This definition is directed to the case where the nominees are put up but in fact behind them strings are being pulled by some other persons who do not put themselves forward as appointed directors. In this case the involvement of the applicants here was thrust upon them by the insolvency of the company. They were not accustomed to give directions. The actions they took, as I see it, were simply directed to trying to rescue what they could out of the company using their undoubted rights as secured creditors. It was submitted to me that it was a prima facie case of shadow directors, but I am bound to say that that is far from obvious.’ and ‘I find that there is no prima facie case made out, and it is unlikely that further information will come to light to show that they are shadow directors. The central point, as I see it, is that they were not acting as directors of the company, they were acting in defence of their own interests. This is not a case where the directors of the company, Steven and his colleagues, were accustomed to act in accordance with the directions of others i.e. the applicants here. It is a case here where the creditor made terms for the continuation of credit in the light of threatened default. The directors of the company were quite free to take the offer or leave it.’

Judges:

Judge Baker QC

Citations:

[1995] 2 BCLC 354

Statutes:

Companies Act 1985 741(2)

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 05 December 2022; Ref: scu.230272

Florentino Comm Giuseppe Sri v Farnesi and Another: ChD 11 Feb 2005

Company directors drew and signed company cheques, but the cheques did not bear the word ‘limited’ or permitted substitute. The cheques were not met and the claimants sued the signatories personally.
Held: The section made the signatory of such a cheque personally liable. Once presented and refused, it became ‘not duly paid’. Under section 45 of the 1882 Act, the drawer was discharged if the cheque was not presented, but under section 46 presentation was sometimes dispensable.

Judges:

Nicholas Warren QC

Citations:

Times 03-Mar-2005

Statutes:

Companies Act 1985 349(4), Bills of Exchange Act 1882 45

Jurisdiction:

England and Wales

Citing:

CitedBritish Airways Board v Parish 1979
Once a cheque is presented for payment and payment is refused, the cheque is deemed not ‘duly paid’. . .
Lists of cited by and citing cases may be incomplete.

Company, Banking

Updated: 05 December 2022; Ref: scu.223441

Tintin Exploration Syndicate Ltd v Sandys: 1947

The court considered the ability of a de facto director to rely on the 1939 Act as a defence to an action by the company to recover ‘trust property’.
Held: The defence failed. The court considered the circumstances in which fiduciary duties might arise, and said that the de facto directors exercised command and control over the company’s property and were consequently trustees for the purposes of the Limitation Act.

Judges:

Roxburgh J

Citations:

(1947) 111 LT 412

Statutes:

Limitation Act 1939

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company, Limitation

Updated: 05 December 2022; Ref: scu.230274

Secretary of State for Trade and Industry v Bottrill: CA 12 Feb 1999

There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the contract is not a sham, it is likely to wish to consider next whether the contract, which may well have been labelled a contract of employment, actually gave rise to an employer/employee relationship. In this context, of the various factors usually considered relevant . . . the degree of control exercised by the company over the shareholder employee is always important. This is not the same question as that relating to whether there is a controlling shareholding. The tribunal may think it appropriate to consider whether there are directors other than or in addition to the shareholder employee and whether the constitution of the company gives that shareholder rights such that he is in reality answerable to himself and incapable of being dismissed.’

Citations:

Gazette 10-Mar-1999, Gazette 27-Jun-1999, [1999] EWCA Civ 781, [1998] IRLR 120, [1999] IRLR 326, [1999] ICR 592, [1999] BCC 177

Links:

Bailii

Statutes:

Employment Rights Act 1996 213

Jurisdiction:

England and Wales

Citing:

Appeal fromSecretary of State for Trade and Industry v Bottrill EAT 28-May-1998
There is no rule of law to suggest that a sole director and owner of majority of shareholding could not be an employee and entitled to redundancy payment on the liquidation of the company. ‘The higher courts have taken the view that the issue as to . .

Cited by:

CitedBunting and Others v Hertel (Uk) Ltd EAT 28-Jun-2001
The appellants claimed to have been unfairly dismissed. They had been owners, through a discretionary trust, of a company sold to the respondents. They claimed also to have been employees. Following the sale, they were dismissed, and they asserted . .
CitedVenables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
CitedUltraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
CitedSmith v Secretary of State for Trade and Industry EAT 15-Oct-1999
The claimant had been sole director of a company which went into liquidation. He sought a redundancy payment from the respondent under the 1996 Act. It was refused. The tribunal had applied Buchan. It had refused to hear an argument that the . .
CitedNesbitt v Secretary of State for Trade and Industry EAT 10-Aug-2007
EAT Contract of Employment – definition of employee
Insolvency
The Appellants were a husband and wife who entered into contracts of employment with a company which they managed and which they between . .
Lists of cited by and citing cases may be incomplete.

Employment, Company, Benefits

Updated: 05 December 2022; Ref: scu.135854

Oates v Consolidated Capital Services Pty Ltd: 3 Jul 2009

Austlii (Supreme Court of New South Wales – Court of Appeal) CORPORATIONS – derivative action – sections 236 and 237 Corporations Act 2001 (Cth) – meaning of ‘proceedings on behalf of a company’ – whether using a statutory derivative action to cause the company to bring a general law derivative action would be considered ‘proceedings on behalf of a company’ – meaning of ‘proceedings’ – meaning of ‘on behalf of a company’ – distinction between the rights of members or shareholders and officers or directors under section 236 – whether a person bringing proceedings on behalf of a company must assert a cause of action for the benefit of the company – CORPORATIONS – derivative action – general law – whether leave is required to commence a derivative action at general law – distinction between leave to commence proceedings and a trial of a preliminary issue – history of the procedure for bringing a derivative action – CORPORATIONS – membership, rights and remedies – reflective loss – whether a shareholder of a holding company can obtain a remedy for loss suffered by a subsidiary company – DAMAGES – general principles – reflective loss – whether a shareholder of a holding company can obtain a remedy for loss suffered by a subsidiary company – whether the losses are to be considered separate – EQUITY – equitable remedies – whether the reflective loss principle applies to equitable remedies – APPEAL AND NEW TRIAL – appeal – general principles – points and objections not taken below – requirement to examine the pleadings and the oral and written admissions – whether argument sought to be raised on appeal was argued at trial – EMPLOYMENT LAW – the relationship of employer and employee – whether property was created in the course of employment – whether property belongs to the employer or employee – STATUTORY INTERPRETATION – sections 236 and 237 Corporations Act 2001 (Cth) – whether section 237 is to be interpreted independently of section 236 – whether upon meeting the requirements of section 237 the court must grant leave – interpretation of legislative provisions in context – WORDS AND PHRASES – ‘proceedings’ – ‘on behalf of’ – ‘reflective loss’

Judges:

Spigelman CJ Allsop P Campbell JA

Citations:

[2009] NSWCA 183

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 04 December 2022; Ref: scu.415963

Re 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.
Held: The company was to be treated as a quasi-partnership. As long as the loan was outstanding he had a legitimate expectation that he could be involved in the management of the company, and his removal as director was unfair.
Robert Walker J discussed the judgment in Tay Bok Choon: ‘Lord Templeman qualified the expectation of the petitioner in that case by limiting it to the period until ‘for some other reason a change in management and control became necessary’; and that qualification is no doubt appropriate in any similar case, including the present case. The personal troubles between Mr Pitt and Mr Watkins … made it inevitable that there should be a change in management and control, and Mr Watkins’ alliance with the Hoggs … made it inevitable that Mr Pitt should be the one to go, regardless of the rights and wrongs of the personal troubles. Conversely, however unmeritorious Mr Pitt’s personal conduct, it could not in my judgment justify the majority shareholders in summarily ejecting him without consultation or discussion about the future of Mr Pitt’s equity capital, and R and H’s loan capital, in Haden Bill.’

Judges:

Robert Walker J

Citations:

[1995] 2 BCLC 280

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

CitedRe a company (No.00477 of 1986) 1986
. .
CitedTay Bok Choon v Tahanson Sdn Bhd PC 1987
A participant in the company was given the right to be involved in the management until a change should become necessary for some other reason.
In cases of fraud, direct evidence may be rare and circumstantial evidence may have to suffice,
CitedRe JE Cade and Son Ltd 1992
The petitioner claimed unfair prejudice under section 459. The company was a licensee of a farm and he sought to recover possession.
Held: The petition failed. In reality he was seeking to promote his interests as freeholder in the land, and . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 December 2022; Ref: scu.264072

Quarter Master UK Ltd v Pyke: 2005

The ‘no conflict rule’ ceased to apply once a director had resigned his office went on to consider the ‘no profit rule.’ Paul Morgan QC: ‘The position is less straightforward in relation to the rules described above as to profiting from the property of the company or from a fiduciary position. If Mr Newson and Mr Pyke acquired property or had available to them the use of property, which was the property of the company, and then Mr Newson and Mr Pyke ceased to be directors of the company but retained the property described above, then it would seem that the mere fact that they had ceased to be directors of the company would not enable them to deal with the company’s property for their own benefit, and in disregard of the fiduciary obligations they owed the company in relation to that property: see the Simonet case at [para] 96. Accordingly, there will be cases where directors who have effectively resigned their directorships will continue to owe fiduciary obligations to the company in relation to the company’s property retained by the directors. There is also a group of cases dealing with what has been described as a ‘maturing business opportunity’ where former directors have continued to owe fiduciary obligations to the company in relation to such a business opportunity even after the termination of the relevant directorships: see the decision of the Supreme Court of Canada in Canadian Aero Services Ltd v O’Malley . . and the Simonet case.’

Judges:

Paul Morgan QC

Citations:

[2005] 1 BCLC 245

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 December 2022; Ref: scu.230279

Kellar v Williams: PC 7 Feb 2000

PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Held: The appeal was dismissed: ‘If the shareholders of a company agree to increase its capital without a formal allocation of shares that capital will become like share premium part of the owner’s equity and there is nothing in the company law of the Turks and Caicos Islands or in the company law of England on which that law is based to render their agreement ineffective. ‘

Judges:

Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Goff of Chieveley, Lord Hutton, Lord Millett

Citations:

[2000] 2 BCLC 390, [2000] UKPC 4, Appeal No 42 of 1998, [2000] 2 BCLC 390

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

See AlsoKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .

Cited by:

See alsoKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
AppliedOyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 December 2022; Ref: scu.174641

Hawks v McArthur: 1951

A transfer of the equitable interest in shares in breach of article 8(B) would nonetheless be effective.
Vaisey J said: There is, undoubtedly, a basic principle that a charging order only operates to charge the beneficial interest of the person against whom the order is made, and that it is not possible, for instance, to obtain an effective charging order over shares where the person against whom the order is made holds them as a bare trustee. The charging order affects only such interest, and so much of the property affected, as the person whose property is purported to be affected could himself validly charge. Jeffreys v Reynolds would seem superficially, to throw some doubt on that general basic proposition, but I think that the only effect of that decision is that the true owner of shares cannot, as a matter of procedure, discharge the charging order after it has been made absolute, and his remedy for asserting and establishing his true rights must be of some other character.

Judges:

Vaisey J

Citations:

[1951] 1 All ER 22

Jurisdiction:

England and Wales

Citing:

AppliedGill v The Continental Union Gas Company Limited 1872
In an action under section 15 against a company for permitting the transfer of shares after notice of a charging order nisi, and before the making of it absolute, it is a good answer to show that the judgment debtor in whose name the shares stood . .
Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 30 November 2022; Ref: scu.183424

In re Wondoflex Textiles Pty Ltd: 1951

The court contrasted the literal meaning of the company’s articles with the true intentions of the parties: ‘It is also true, I think, that, generally speaking, a petition for winding up, based upon the partnership analogy, cannot succeed if what is complained of is merely a valid exercise of powers conferred in terms by the articles . . . To hold otherwise would enable a member to be relieved from the consequences of a bargain knowingly entered into by him . . . But this, I think, is subject to an important qualification. Acts which, in law, are a valid exercise of powers conferred by the articles may nevertheless by entirely outside what can fairly be regarded as having been in the contemplation of the parties when they became members of the company; and in such cases the fact that what has been done is not in excess of power will not necessarily be an answer to a claim for winding up. Indeed, it may be said that one purpose of [the just and equitable provision] is to enable the court to relieve a party from this bargain in such cases.’

Judges:

Smith J

Citations:

[1951] VLR 458

Jurisdiction:

Australia

Cited by:

ApprovedEbrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 30 November 2022; Ref: scu.182289

North Holdings Limited v Southern Tropics Limited and Others: CA 29 Jan 1999

Aldous LJ said that an offer to buyout shares at valuation may not be enough to deflect a petition for unfair prejudice: ‘Whether or not their actions amounted to a breach of their fiduciary duties is likely to depend upon the facts probably upon the extent and type of misuse. That being so, it would not be right to strike out the petition. The price to be paid for the B shares will depend upon a decision as to whether any part of the business of Kasmare is held on trust for Southern Tropics and if so, how much. That is a decision that should be taken by the court not an accountant. It follows that the offer to purchase in the letter of 12 June 1998 and the option in the shareholders’ agreement are not sufficient to remove any potential unfair prejudice.’

Judges:

Aldous, Hirst, Waller LJJ

Citations:

[1999] EWCA Civ 681, [1999] 2 BCLC 625

Jurisdiction:

England and Wales

Cited by:

CitedHarborne Road Nominees Ltd v Karvaski and Another ChD 19-Aug-2011
The claimant asked the court to set aside as an abuse the petition issued by the defendants, saying that it was only an attempt to obtain control of the company.
Held: The application failed. To succeed the claimant must show that his offer . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 30 November 2022; Ref: scu.145596

Guinness 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 hae been prejudiced. The claimant appealed a strike out of its claim.
Held: Such a strike out was unprecedented. The court was in no dount that it should not have been struck out. The valuation was a disputed issue of fact: ‘Factual disputes (including those involving big property companies and world experts on share values) are normally resolved in an adversarial system by a trial after pleadings, discovery and oral evidence tested by cross examination. ‘ There were two sets of conflicting valuations; either might be correct.

Citations:

[1998] EWCA Civ 1956

Statutes:

Companies Act 1985 8459

Jurisdiction:

England and Wales

Citing:

CitedLawrence v Lord Norreys HL 1890
The plaintiff brought an action for recovery of possession of an estate, relying on events which had occurred 70 years earlier. The plaintiff had already brought a case which was dismissed on the grounds that it was statute-barred. The plaintiff . .
CitedWenlock v Moloney CA 1965
The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, . .
CitedIn 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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 30 November 2022; Ref: scu.145435