Category: Company

Exeter Trust Ltd v Screenways Ltd: CA 14 May 1991

The existence of the limited staturtory jurisdiction to order rectification under section 404 displaced and was inconsistent with the continuation of any common law power to order rectification.

Citations:

Times 14-May-2003, [1991] BCLC 888

Statutes:

Companies Act 1985 404

Jurisdiction:

England and Wales

Cited by:

Applied – Igroup Ltd v Ocwen (an unlimited company) and Others ChD 23-Oct-2003
The claimant had submitted debentures and forms to the registrar of companies for registration. The documents submitted contained more information than was necessary, and the extra information was commercially sensitive. It sought rectification of . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 June 2022; Ref: scu.188707

Trustor 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 lifted by treating the receipt by the company as his.
Held: Not every impropriety would lead to such a conclusion, but here the company was a device or facade used for a fraud, and the court treated the receipt by the company as receipt by the defendant. Sir Andrew Morritt V-C identified three suggested categories of cases in which it may be appropriate to pierce the corporate veil, including (1) cases in which the company was shown to be a facade or a sham, and (2) cases where the company was involved in some impropriety, and (3) where it is necessary to do so in the interests of justice and no unconnected third party is involved.
Sir Andrew Morritt VC said: ‘Companies are often involved in improprieties. Indeed there was some suggestion to that effect in Salomon v A Salomon and Co Ltd [1897] AC 22. But it would make undue inroads into the principle of Salomon’s case if an impropriety not linked to the use of the company structure to avoid or conceal liability for that impropriety was enough.’
and: ‘the court is entitled to ‘pierce the corporate veil’ and recognise the receipt of the company as that of the individual(s) in control of it if the company was used as a device or facade to conceal the true facts thereby avoiding or concealing any liability of those individual(s).’

Judges:

James Morritt V-C

Citations:

Times 30-Mar-2001, Gazette 17-May-2001, [2001] 1 WLR 1177, [2001] EWHC 703 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Trustor Ab v Smallbone and others CA 19-Jan-1999
Appeal against refusal to allow the defendant, subject to a Mareva injunction, to charge his house to pay his legal fees. . .
See Also – Trustor AB v Smallbone and others CA 9-May-2000
. .

Cited by:

Cited – Ultraframe (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 . .
Cited – Coles and others (Trustees of the Ward Green Working Mens Club) v Samuel Smith Old Brewery (Tadcaster) (Unltd Company) and Another CA 29-Nov-2007
The claimants appealed refusal of an order for specific performance of a contract for the purchase of land under the exercise of an option agreement. The defendant had conveyed the land to a subsidiary in order to defeat the option.
Held: ‘The . .
Cited – 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 . .
Cited – Lindsay 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 . .
Criticised – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 18 June 2022; Ref: scu.90013

Wood v Sureterm Direct Ltd and Capita Insurance Services Ltd: CA 30 Jul 2015

At issue in this appeal is the true construction of a clause in a sale and purchase agreement in respect of all the shares in a company.
Held: The appeal succeeded. The Court of Appeal declared that Mr Wood’s liability under the indemnity in the SPA: ‘cannot arise unless the matter in respect of which indemnity is sought follows and arises out of either (i) a claim made against the Company, a Seller or a Relevant Person or (ii) a complaint registered with the FSA, the Financial Services Ombudsman or any other Authority against the Company, a Seller or a Relevant Person and, in either case, the claim or complaint (a) relates to the period prior to the Completion Date and (b) pertains to any mis-selling or suspected mis-selling of any insurance or insurance related product.’

Judges:

Patten, Gloster, Christopher Clarke LJJ

Citations:

[2015] EWCA Civ 839

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Wood v Sureterm Direct Ltd and Another ComC 14-Oct-2014
Construction of an indemnity provision in an agreement for the sale and purchase of the shares in the First Defendant.
Held: The Court decided a preliminary issue of the interpretation of the indemnity clause holding in effect, that it . .

Cited by:

Appeal from – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 18 June 2022; Ref: scu.550901

Spokes v Grosvenor and West End Railway Terminus Hotel Co Ltd: CA 1897

The court discussed the joinder of the company in a derivative action. A L Smith LJ said: ‘That in the circumstances of this case the company are necessary parties to the suit I do not doubt, for without the company being made a party to the action it could not proceed’ because ‘the company must be party to the suit in order to be bound by the result of the action and to receive the money received in the action.’ Also, ”what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company.’
Chitty LJ said: ‘To such an action as this the company are necessary defendants. The reason is obvious: the wrong alleged is done to the company, and the company must be party to the suit in order to be bound by the result of the action and to receive the money recovered in the action. If the company were not bound they could bring a fresh action for the same cause if the action failed, and there were subsequently a change in the board of directors and in the voting power. Obviously in such action as this is, no specific relief is asked against the company; and obviously, too, what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company. It was argued for the appellants that the company were made a party for the purpose of discovery only, and authorities were cited to shew that when no relief is asked against a party he cannot or ought not to be compelled to make discovery. But this argument and these authorities have no bearing on the present case, where, as already shewn, the action cannot proceed in the absence of the defendant company, and the defendant company are interested in and will be bound by the results’.

Judges:

A L Smith LJ, Chitty LJ

Citations:

[1897] 2 QB 124

Statutes:

Companies Act 2006

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts 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: 18 June 2022; Ref: scu.415959

Holmes v Keyes: CA 1959

Where provisions were ambiguous a construction which produced reasonable business efficacy was preferred over one which produced an unreasonable result. Jenkins LJ said: ‘I think that the articles of association of the company should be regarded as a business document and should be construed so as to give them reasonable business efficacy, where a construction tending to that result is admissible on the language of the articles, in preference to a result which would or might prove unworkable.’
As to the particular clause he said; ‘What, to my mind, concludes the matter is the circumstance that the article with which we are here concerned, article 65, as adopted by special resolution, provides as follows: ‘At any general meeting of the company a resolution put to the vote of the meeting shall be decided on a show of hands unless before or upon the declaration of the result of the show of hands a poll be demanded’. It is to be observed that a poll can be demanded before the show of hands as well as upon the declaration of the results of the show of hands. The language is capable of reading: ‘Unless before the declaration of the result of the show of hands or upon the declaration of the result of the show of hands,’ and then it could conceivably be argued that the demand could not be made before the declaration of the result of the show of hands if there was no show of hands at all. That would be an inconvenient construction, which would compel going through the formality of a show of hands, not for the purpose of obtaining the result of that vote, but merely so that a demand for a poll could be made before the declaration of the result. I think the article should read, as suggested by my brother Romer in the course of the argument, in this way: ‘At any general meeting of the company a resolution put to the vote of the meeting shall be decided on a show of hands unless before (comma) or upon the declaration of the result of (comma) the show of hands a poll be demanded.’ That makes it clear that a poll can be demanded without going through the formality of a show of hands. That question, therefore, is, in my judgment, out of the way.’

Judges:

Jenkins LJ, Romer LJ and Ormerod LJ

Citations:

[1959] Ch 199

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 June 2022; Ref: scu.375100

Platt v Platt and Another: ChD 19 Jul 1999

Citations:

[1999] 2 BCLC 745

Jurisdiction:

England and Wales

Cited by:

Appeal from – Kieth Platt v Colin Platt and Another CA 13-Dec-2000
The applicant appealed an order setting aside transfers to him of shares in a family company, found to have been made after misrepresentation and a breach of fiduciary duty. Three companies owned by the family had fallen into difficulties, and the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 18 June 2022; Ref: scu.229777

Schofield v Jones: ChD 1 Apr 2019

Application by a director of the Company, for an order pursuant to Section 306 of the Companies Act 2006 that a general meeting of the company be held at which the attendance of one member will constitute a quorum.

Citations:

[2019] EWHC 803 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 17 June 2022; Ref: scu.635194

Re Noble Group Ltd: ChD 14 Nov 2018

Application by Noble Group Limited for an order sanctioning a scheme of arrangement between the Company and its Scheme Creditors

Judges:

Snowden J

Citations:

[2018] EWHC 3092 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Re Noble Group Ltd ChD 2-Nov-2018
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 June 2022; Ref: scu.628963

In Re the Working Project Ltd; In Re Fosterdown Ltd and Others: ChD 27 Oct 1994

Company disqualification proceedings may conclude in the county court after a winding up of the company in that court. The power to disqualify directors survives the finishing of the winding up of the company, even though the Official Receiver had had no right to commence the proceedings and the County Court had had no jurisdiction to hear them.

Judges:

Carnwath J

Citations:

Times 27-Oct-1994, Ind Summary 28-Nov-1994, [1995] BCC 197

Statutes:

Company Directors Disqualification Act 1986 6(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Re NP Engineering and Security Products Ltd; Official Receiver and Another v Pafundo and Another CA 22-Oct-1996
The official receiver began director disqualification proceedings, but before the proceedings commenced, the company was wound up. Where, on an application for the disqualification of a director, the official receiver and the Secretary of State . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 17 June 2022; Ref: scu.82247

In re Derfshaw Ltd and Others: ChD 2 Jun 2011

The court considered applications for administration orders made by six companies at the instigation of directors of those companies, and the appointment of administrators with retrospective effect.
Held: Morgan J said that he could see scope for argument as to the correctness of G-Tech Construction Limited, but that the desirability of making retrospective orders was considerable, and that since the authority for making such orders existed he felt he ought to follow the lead of Hart J.

Judges:

Morgan J

Citations:

[2011] EWHC 1565 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re G-Tech Construction Limited ChD 29-Sep-2005
In appointing the administrators, the wrong form had been used. The court was asked to use its powers to cure the mistake. The failure to file the correct form was overlooked, with the result that one of the prerequisites of an appointment taking . .

Cited by:

Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 17 June 2022; Ref: scu.441062

Clydesdale Bank Plc v Weston Property Company Ltd: ChD 14 Apr 2011

The court heard a Part 8 Application by the Bank for declarations as to the true construction, or alternatively, rectification, of a legal mortgage between the bank and the defendant, and either rectification or a declaration in respect of the Form 395 which was delivered to the Registrar of Companies for registration of the particulars of that mortgage and in relation to the certificate issued by him in respect of it.

Citations:

[2011] EWHC 1251 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 17 June 2022; Ref: scu.441061

In Re Westminster Property Management Ltd: ChD 19 Jan 2000

Since company director disqualification proceedings were not criminal proceedings, even though they involved the imposition of a penalty, they remained civil proceedings in nature. The European Convention on Human Rights did not apply to protect a director against having material, disclosed by him under compulsion in the course of an insolvency, being used against him in disqualification proceedings.

Citations:

Times 19-Jan-2000, Gazette 03-Feb-2000

Statutes:

European Convention on Human Rights, Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Litigation Practice, Human Rights, Company

Updated: 17 June 2022; Ref: scu.82287

In Re Wimbledon and Merton Democratic Club Society Ltd: ChD 7 Jan 1999

A Friendly Society having ceased to operate and discussed dissolution with the Registrar and satisfied him that it had ceased to exist could not then claim to have been merely dormant. Re-constitution was properly refused. A revived society was a new one.

Citations:

Times 07-Jan-1999

Statutes:

Industrial and Provident Societies Act 1965 16(1)(a

Jurisdiction:

England and Wales

Company

Updated: 17 June 2022; Ref: scu.82299

In Re Structural Concrete Ltd, Barnes and Others: ChD 29 Jun 2000

In order to try to trade out of difficulties, company directors decided to give priority to the payment of trade and banking debts over debts due to the revenue.
Held: An appeal against the refusal to disqualify the Directors succeeded. There was no dispute as to the facts alleged and so the appeal court was in as good a position as the first instance court to make the assessment. It would allow a wrong message to go out that such an approach would not be strongly disapproved. Where directors had deliberately given priority to certain trade creditors by a policy of non-payment of other creditors of a certain class, was inevitably to lead to a disqualification. The company had withheld substantial sums which had been retained from payments to sub-contractors and which should have been paid to the Inland Revenue. They had used the money in the hope of trading out of their difficulties.

Judges:

Blackburne J

Citations:

Gazette 29-Jun-2000, Times 05-Jul-2000, [2001] BCC 579

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012
The directors appealed against disqualification orders made against them under the 1986 Act. Their company had become insolvent, owing substantial arrears of PAYE and NI contributions. The revenue had said that they had paid other creditors first. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 June 2022; Ref: scu.82205

Oberman v Collins and Another: ChD 21 Dec 2020

Proceedings brought for a declaration that the claimant is beneficially entitled to 50% of a number of properties held by the Defendants either under a common intention constructive trust or a partnership and for relief under sections 994 and 996 of the Companies Act 2006 on the grounds of unfair prejudice.

Judges:

Tom Leech QC (sitting as a Judge of the Chancery Division)

Citations:

[2020] EWHC 3533 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 994 996

Jurisdiction:

England and Wales

Company, Trusts

Updated: 14 June 2022; Ref: scu.656902

Harmon CFEM Facades (UK) Ltd v The Corporate Officer of the House of Commons: TCC 29 Jun 2000

The company began a claim for damages for the failure to complete an award of a contract, but then went into voluntary liquidation. The defendant refused payment claiming that it would be used only for payment of the insolvency practitioner’s costs. The new CPR rules disapplied old assumptions, and the overriding objective should apply. An interim payment was ordered limited to reflect the risk of a failure to secure recovery in the case of a failure of the action.

Citations:

Gazette 20-Jul-2000, [2000] EWHC Technology 84

Links:

Bailii

Citing:

Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
See Also – Harmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .

Cited by:

See Also – Harmon CFEM Facade (UK) Ltd (In Voluntary Liquidation) v Corporate Officer of the House of Commons QBD 15-Nov-2000
If an award of interim damages was properly payable, then it remained payable notwithstanding that the claimant was impecunious, and that in principle the damages might be come repayable where the claimant could have become unable to repay. It was . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Litigation Practice, Landlord and Tenant

Updated: 13 June 2022; Ref: scu.201812

Reynard v Secretary of State for Trade and Industry: CA 20 Nov 2001

Applications for leave to appeal by both the Secretary of State and the direcyor against the period of disqualification (5.5 years) imposed. Question of whether a former director’s mendacity in court could affect the period of disqualification.

Citations:

[2001] EWCA Civ 1765

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Company

Updated: 13 June 2022; Ref: scu.201519

JJ Harrison (Properties) Ltd v Harrison: CA 11 Oct 2001

A director had bought land belonging to the company, without disclosing its development potential.
Held: He had acquired the property as a constructive trustee for the company, and was accordingly accountable for it.

Citations:

[2001] EWCA Civ 1467, [2002] 1 BCLC 162

Links:

Bailii

Statutes:

Limitation Act 1981 21(1)

Jurisdiction:

England and Wales

Citing:

Application for leave – J J Harrison (Properties) Ltd v Harrison CA 16-Jul-2001
Application for permission to appeal, an application for permission to adduce fresh evidence on the appeal, and an application for an extension of time in which to appeal. . .

Cited by:

Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Ultraframe (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 . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Lists of cited by and citing cases may be incomplete.

Limitation, Company, Trusts

Updated: 13 June 2022; Ref: scu.201401

Clarkson v Gilbert and others: CA 1 May 2001

Application for permission to appeal by the claimant against a decision which effectively precludes her from continuing with her proceedings against 19 named defendants who were members with her of the Gestalt Psychotherapy Training Institute at the relevant time.

Judges:

Latham LJ

Citations:

[2001] EWCA Civ 766

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Company

Updated: 11 June 2022; Ref: scu.201038

Circuit Systems Ltd and Another v Zuken-Redac (UK) Ltd: CA 21 Mar 2001

Application for permission to appeal.

Judges:

Aldous, Mummery, Kay LJJ

Citations:

[2001] EWCA Civ 481, [2001] BLR 253

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Circuit Systems Ltd (In Liquidation), W J Basten v Zuken-Redac (Uk) Ltd (Formerly Racal-Redac (Uk) Ltd) TCC 25-Jun-1999
. .

Cited by:

Appealed to – Circuit Systems Ltd (In Liquidation), W J Basten v Zuken-Redac (Uk) Ltd (Formerly Racal-Redac (Uk) Ltd) TCC 25-Jun-1999
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 June 2022; Ref: scu.200871

Trinity Mirror plc (formerly Mirror Group Newspapers Ltd) v Commissioners of Customs and Excise: CA 25 Jan 2001

The issue by a company of shares is a supply of services for the purposes of VAT. The issue of shares was ‘something done’ by the company, as required by the Directive. The consideration received for such shares was part of the company’s turnover, and therefore a VATable supply.

Citations:

Gazette 05-Apr-2001, Times 06-Mar-2001, [2001] EWCA Civ 1219, [2001] EWCA Civ 65

Links:

Bailii, Bailii

Statutes:

Sixth VAT Directive (77/388/EEC), Value Added Tax Act 1994

Jurisdiction:

England and Wales

European, VAT, Company

Updated: 11 June 2022; Ref: scu.200773

Short v Treasury Commissioners: CA 1948

‘shareholders are not, in the eye of the law, part owners of the undertaking’ A share is classified as a chose in action, a species of intangible personal property.

Citations:

[1948] 1 KB 116

Jurisdiction:

England and Wales

Cited by:

Cited – Her Majesty’s Commissioners of Inland Revenue v Laird Group plc HL 16-Oct-2003
Was the payment of a dividend in respect of shares ‘a transaction in securities’ or ‘a transaction relating to securities’ within the meaning of section 703.
Held: ‘As a matter of ordinary language, the creation, issue, sale, purchase, . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 June 2022; Ref: scu.186958

Regina v Director of Public Prosecutions, ex parte Jones: CA 2000

A company Managing Director had arranged for a dockside crane to be adapted, so that with the jaws of the grab bucket open bags could be attached to hooks fitted within the bucket. Jones was in the hold of a ship loading bags onto the hooks when the jaws of the bucket closed and he was decapitated. In deciding not to prosecute the managing director and the company for gross negligence, the lack of subjective recklessness on his part was ‘dispositive’
Held: If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of any recklessness if on an objective basis the defendant demonstrated a ‘failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded that he should address.’ That is a test in objective terms.

Judges:

Buxton LJ

Citations:

[2000] IRLR 373

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Shulman, Regina v Prentice, Regina v Adomako and Regina v Holloway CACD 21-May-1993
A patient had been injected with the wrong medicine, and died as a result.
Held: The ingredients of the offence of involuntary manslaughter by breach of duty are the existence and breach of a duty, which had caused death and gross negligence . .
Approved – West Yorkshire Trading Standards Service v Lex Vehicle Leasing Ltd QBD 9-Feb-1995
It was alleged that the maximum permitted front axle weight of the vehicle in question was exceeded. The court was asked what were the circimstances defing a ‘user’ of a motor vehicle in prosecutions for use of the vehicle.
Held: ‘The . .

Cited by:

Cited – Regina on the Application of Rowley v Director of Public Prosecutions QBD 4-Apr-2003
The applicant sought to challenge a decision not to prosecute a third party following the death of her son. He had been in care, having multiple disabilities, including epilepsy. He drowned whilst in a bath. It had been recognised that he needed . .
Cited – Cambridgeshire County Council v Associated Lead Mills Ltd ChD 22-Jul-2005
The prosecutor appealed dismissal of the charge of driving a heavy commercial vehicle on a road which was subject to a maximum weight restriction in breach of the 1984 Act. The company denied that it had any knowledge of the actual route taken by . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 11 June 2022; Ref: scu.180636

Moss Steamship Co Ltd v Whinney: HL 26 Jun 1911

A brewery company had habitually shipped beer by the appellants’ steamships under bills of lading which provided for a lien to the shipowners for unsatisfied freight due either from shipper or consignee in respect of other shipments. The brewery’s debenture holders brought an action against it, and W. was appointed receiver and manager of the brewery company. W. sent an order to the appellants to ship some beer consigned to the company, c/o the company’s agents at Malta, signing the order in name of the brewery company ‘by W., Receiver and Manager.’ The shipowners having carried the beer under a bill of lading in their usual form claimed a lien over it for arrears of freight due in respect of previous shipments by the company before W. was appointed receiver.
Held (diss. Lords Shaw and Mersey) that the company and W. the receiver were distinct; that the receiver was both shipper and consigner, and by the form of his order had given notice of this fact to the appellants, and that accordingly the appellants were not entitled to a lien under the bill of lading for arrears of freight.

Judges:

Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Ashbourne, Atkinson, Shaw, and Mersey

Citations:

[1911] UKHL 630, 49 SLR 630

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 11 June 2022; Ref: scu.619203

Hutton v West Cork Rly Co: CA 1883

Even though a company’s directors may act in good faith for a purpose which is ostensibly within their powers, the court may intervene in exceptional circumstances: ‘Bona fides cannot be the sole test, otherwise you might have a lunatic conducting the affairs of the company, and paying away its money with both hands in a manner perfectly bona fide yet perfectly irrational.’

Judges:

Bowen LJ

Citations:

(1883) 23 ChD 654

Jurisdiction:

England and Wales

Cited by:

Cited – Ultraframe (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: 11 June 2022; Ref: scu.230277

Bell Davies Trading Ltd and Another v Secretary of State for Trade and Industry: CA 30 Jul 2004

The directors of the company had organised a scheme for imports from China which was thought to be an unlawful abuse of the import licensing scheme. When presneted with an application by the Secretary of State for the winding up of the company, the company gave undertakings as to their future conduct. They then sought a declaration that certain operations would not be in breach of those undertakings, and appealed a refusal of a declaration, and of the undertakings, saying they had been given under effective compulsion.
Held: Generally a party giving an undertaking would not later be heard to speak against it, but in this case it was effectively an appeal against the judge’s decision not to wind the company up only if undertakings were given. This was a case in which the company could be allowed to appeal against its own undertakings. An application for declaratory relief by the company rather than winding up at the request of the Seceretary might have been a better approach in the first place. Had the company sought to establish the lawfulness or otherwise of their scheme they might not have ended up in this postion. The judge’s decision was correct.

Judges:

Lord Justice Mummery The Honourable Mr Justice Collins Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 1066, Times 21-Sep-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – The Secretary of State for Trade and Industry v Bell Davies Trading Ltd and KTA Limited ChD 16-Jan-2004
. .
Cited – In the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986 ChD 19-Mar-2004
The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but . .
Lists of cited by and citing cases may be incomplete.

Commercial, Company

Updated: 11 June 2022; Ref: scu.199593

Concord Trust v The Law Debenture Trust Corporation Plc: CA 28 Jul 2004

Judges:

Lord Justice Peter Gibson Laddie, The Hon Mr Justice Laddie Lord Justice Jonathan Parker

Citations:

[2004] EWCA Civ 1001

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Concord Trust v Law Debenture Trust Corporation Plc HL 28-Apr-2005
The House was called on to construe the terms of a Eurobond. The question was as to the entitlement to require the trustees to issue a notice of default which would accelerate payment under the bond, and the ability of the Trustees to call for an . .
Lists of cited by and citing cases may be incomplete.

Company, Financial Services

Updated: 11 June 2022; Ref: scu.199561

In re Queens Moat Houses Plc; Secretary of State for Trade and Industry v Bairstow, Hersey, Marcus, Porter: ChD 19 Jul 2004

Mr Bairstow had been found guilty of grave misconduct and neglect of his duties in wrongful dismissal proceedings which he brought against a company of which he had been the managing director. The Secretary of State now sought an order against him under section 8 of the 1986 Act.

Judges:

The Honourable Sir Donald Ratee

Citations:

[2004] EWHC 1730 (Ch)

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Calzaghe v Warren QBD 20-Jan-2010
The claimant boxer had secured judgement for fight fees from a company operated by the respondent manager and promoter. After the judgment the defendant had put the company into administration. The claimant now sought payment from the defendant . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 June 2022; Ref: scu.199318

Pennington and others v Crampton and others: CA 17 Jun 2004

Application for permission to appeal against proposal of Tomlin Order

Judges:

Waller, Chadwick LJJ

Citations:

[2004] EWCA Civ 819

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Pennington 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, . .
See Also – Hurst v Crampton Bros (Coopers) Ltd and others CA 9-Aug-2002
Adjourned application for permission to appeal . .
Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate

Updated: 11 June 2022; Ref: scu.198508

Archer and Watkins v Registrar General and Another: PC 24 Jun 2004

(The Bahamas) The claimants challenged the way the respondent had allowed a company to alter its register of shareholders to their detriment.
Held: The responsibility for maintaining the share register rested on the company and its officers, and not on the respondent registrar. Appeal dismissed.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Dame Sian Elias

Citations:

[2004] UKPC 31

Links:

Bailii, PC, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another CA 1993
. .
Cited – Stubbs v Slater 1910
A deposit by guarantors who had agreed ‘to assign to [the Bank] their certificates of shares in [PPL] by way of deposit’, together with endorsed transfers in blank, would create an equitable mortgage with an implied power of sale. Neville J . .
Cited – Re Hoicrest Ltd 2000
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 June 2022; Ref: scu.198380

In the Matter of Telewest Communications Plc and in the Matter of Telewest Finance (Jersey) Ltd: ChD 22 Jun 2004

Richards J said: ‘In considering the primary position of the Opposing Bondholders, it is important to keep in mind the function of the court at this stage. This is an application by the companies for leave to convene meetings to consider the schemes. It is emphatically not a hearing to consider the merits and fairness of the schemes. Those aspects are among the principal matters for decision at the later hearing to sanction the schemes, if they are approved by the statutory majorities of creditors. The matters for consideration at this stage concern the jurisdiction of the court to sanction the scheme if it proceeds. There is no point in the court convening meetings to consider the scheme if it can be seen now that it will lack the jurisdiction to sanction it later. This is principally a matter of the composition of classes. Under section 425, the court will have no jurisdiction to sanction the scheme if the classes have been incorrectly constituted. It is perhaps unfortunate that this is the case and there is much to commend an approach which enables the court to sanction a scheme in an appropriate case, where the classes have been incorrectly constituted in a way which would not have affected the outcome of the meetings. But that is not the position under section 425 and the practice now is to deal so far as possible with issues of class composition at the first stage of the application for leave to convene meetings. There might exceptionally be other issues which would go to jurisdiction and could properly raised at this stage: see re Savoy Hotel Ltd [1981] Ch. 351. What the court should not do is consider the fairness of the scheme with a view to deciding whether at the later hearing it will or will not sanction it.
If the Opposing Bondholders’ position is that the inclusion of the Average Exchange Rate produces so unfair a result that no court would sanction the scheme, that as it seems to me can and should be considered at the hearing to sanction the scheme . . .’

Judges:

Mr Justice Richards

Citations:

[2004] EWHC 1466 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 425

Cited by:

Cited – Mytravel Group Plc, Re Companies Act 1985 ChD 24-Nov-2004
The company sought approval of a proposed reconstruction under the section.
Held: Approval could not be given. To count as a reconstruction two principal qualities were required. The business carried on should be the same or similar, and those . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 11 June 2022; Ref: scu.198300

Criterion Properties plc v Stratford UK Properties LLC and others: HL 17 Jun 2004

The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue to be considered.
Lord Scott of Foscote: ‘The word ‘receipt’ in the expression ‘knowing receipt’ refers to the receipt by one person from another of assets. A person who enters into a binding contract acquires contractual rights that are created by the contract. There may be a ‘receipt’ of assets when the contract is completed and the question whether there is ‘knowing receipt’ may become a relevant question at that stage. But until then there is simply an executory contract which may or may not be enforceable. The creation by the contract of contractual rights does not constitute a ‘receipt’ of assets in the sense that a ‘knowing receipt’ involves a receipt of assets. The question whether an executory contract is enforceable is quite different from the question whether assets of which there has been a ‘knowing receipt’ are recoverable from the recipient. To confuse these two questions is likely to lead, and in the present case has, in my opinion, led, to further confusion.’
Lord Nicholls of Birkenhead: ‘If a company (A) enters into an agreement with B under which B acquires benefits from A, A’s ability to recover these benefits from B depends essentially on whether the agreement is binding on A. If the directors of A were acting for an improper purpose when they entered into the agreement, A’s ability to have the agreement set aside depends upon the application of familiar principles of agency and company law. If, applying these principles, the agreement is found to be valid and is therefore not set aside, questions of ‘knowing receipt’ by B do not arise. So far as B is concerned there can be no question of A’s assets having been misapplied. B acquired the assets from A, the legal and beneficial owner of the assets, under a valid agreement made between him and A. If, however, the agreement is set aside, B will be accountable for any benefits he may have received from A under the agreement. A will have a proprietary claim, if B still has the assets. Additionally, and irrespective of whether B still has the assets in question, A will have a personal claim against B for unjust enrichment, subject always to a defence of change of position. B’s personal accountability will not be dependent upon proof of fault or ‘unconscionable’ conduct on his part. B’s accountability, in this regard, will be ‘strict’.’

Judges:

Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Carswell

Citations:

[2004] UKHL 28, Times 25-Jun-2004, [2004] 1 WLR 1846, [2004] BCC 570, [2004] NPC 96

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Royal British Bank v Turquand CEC 1856
The plaintiff sought payment from the defendants, a joint stock Company, on a bond, signed by two directors, under the seal of the Company whereby the Company acknowledged themselves to be bound to the plaintiff in pounds 2,000. The company said . .
Criticised – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .

Cited by:

Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Ultraframe (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: 11 June 2022; Ref: scu.198184

In Re London United Investments Plc: CA 1992

The privilege against self-incrimination was impliedly excluded by the terms of a statute which conferred power on company inspectors appointed by the Secretary of State to require documents and answers to questions from any person whom they consider may have relevant information.

Citations:

[1992] Ch 578

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Bishopsgate Investment Limited v Maxwell CA 1999
A person required to answer questions under the section may not refuse to answer on the ground of self-incrimination. (Dillon LJ) ‘It is plain to my mind – and not least from the Cork Report – that part of the mischief in the old law before the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Company

Updated: 11 June 2022; Ref: scu.242406

In re Ottos Kopje Diamond Mines Ltd: CA 1893

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

Judges:

Bowen LJ

Citations:

[1893] Ch 618

Jurisdiction:

England and Wales

Cited by:

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

Estoppel, Company

Updated: 11 June 2022; Ref: scu.242174

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

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

Judges:

Brett LJ, Cotton LJ

Citations:

(1879) 5 QBD 188

Jurisdiction:

England and Wales

Cited by:

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

Estoppel, Company

Updated: 11 June 2022; Ref: scu.242177

Re Alabama, New Orleans, Texas and Pacific Junction Railway Company: CA 1891

The question is whether a scheme of arrangement: ‘was at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class [to whom the scheme is put], and acting alone in respect of his interest as such a member, might approve of it.’
Bowen LJ: ‘It is in my judgment desirable to call attention to this section, and to the extreme care which ought to be brought to bear upon the holding of meetings under it. It enables a compromise to be forced upon the outside creditors by a majority of the body, or upon a class of the outside creditors by a majority of that class. It would be most unjust to bind creditors or classes of creditors by the decision of three-fourths in value of those who attend a particular meeting, unless you have secured that the meeting shall adequately represent the entire body. But the section makes no provision for that, except by enacting that the meeting is to be held in the manner in which the Court shall direct.’

Judges:

Fry LJ, Bowen LJ

Citations:

[1891] 1 Ch 213

Jurisdiction:

England and Wales

Cited by:

Cited – Cape Plc and Others, Re Companies Act 1985 ChD 16-Jun-2006
The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 11 June 2022; Ref: scu.219201

In re Barleycorn Enterprises Ltd; Mathias and Davies (a Firm) v Down: CA 1970

The property comprised in a floating charge forms part of the assets of a company for the purposes of paying (1) costs and expenses of winding up as well as (2) preferential debts.
Phillimore LJ said: ‘Mr Wooton’s submission [for the debenture-holder] . . was that if there were . . assets not covered by some floating charge . . then the proper order for payment would be: first, the costs of the winding up; secondly, the preferential debts; and thirdly, the floating charge. On the other hand if there were no free assets and everything was covered by the floating charge, then the order would be: first, the preferential debts; secondly the floating charge; and, thirdly, the costs of the winding up . . I find it very difficult to defend the logic which would make the order of priority as between costs and preferential debts dependent upon whether or not there was a floating charge.’

Judges:

Lord Denning MR and Sachs and Phillimore L JJ

Citations:

[1970] Ch 465

Statutes:

Companies Act 1948 319

Jurisdiction:

England and Wales

Cited by:

Overruled – Buchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
Applied – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 June 2022; Ref: scu.194247

GE Capital Commercial Finance Ltd v Sutton; Anglo Pteroleum Ltd v Same: CA 19 Mar 2004

The administrative receivers of a company sought production of documents from the company’s solicitors.
Held: The receiver was tasked to deal with the realisation of the mortgaged property, and it could not use its powers to seek to obtain documents in order to assist a third party. The requirement was not being exercised for the company’s benefit, and was refused.

Judges:

Chadwick LJ, Rix LJ

Citations:

Times 08-Apr-2004, Gazette 08-Apr-2004

Jurisdiction:

England and Wales

Citing:

Cited – Newhart Developments Ltd v Co-operative Commercial Bank Ltd CA 1978
The appointment of administrative receivers of a company with a view to realisation of certain charged assets did not deprive the directors of their duties and power to take other proceedings which did not impinge on the activities of the receivers. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 June 2022; Ref: scu.195578

Bathurst (As Administrator of the Estate of Michael David Bathurst Deceased) v Scarborow: CA 1 Apr 2004

The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent evidence that the partners had agreed a beneficial joint tenancy, but that with the nature of the partnership did support such an intention. The solicitor had taken pains to make the consequences clear to the partners. There was a possibility that the transfer had not in fact been executed by the partners. ‘Ultimately there is no inconsistency between a beneficial joint tenancy and partnership property: the only inconsistency is between the rule of survivorship and the presumption that partnership property is held in common. Ultimately, however, contrary agreement prevails. No case of severance has been made. ‘

Judges:

Lord Justice Rix Lord Justice Jacob

Citations:

[2004] EWCA Civ 411

Links:

Bailii

Statutes:

Partnership Act 1890 19

Jurisdiction:

England and Wales

Citing:

Cited – Barton v Morris 1985
A couple lived together as man and wife and bought a property for use as a guest house business to be run as a partnership. The conveyance executed by both of them included an express declaration that they held the property upon trust for themselves . .
Cited – Jackson v Jackson 4-Jul-1804
A testator left his business and land to his two sons jointly to carry on that business after his death. They did so as partners. One issue was whether in doing so they severed the joint tenancy in the land, which was accessory to the business. Lord . .
Cited – Brown v Oakshot 1857
A father devised his estate to trustees for a term, for them to pay a residue of rents from that estate to his sons as tenants in common; but the reversion of the estate he devised to his sons as joint tenants. The question was whether the joint . .
Cited – Barton v Morris 1985
A couple lived together as man and wife and bought a property for use as a guest house business to be run as a partnership. The conveyance executed by both of them included an express declaration that they held the property upon trust for themselves . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 June 2022; Ref: scu.195027

USP Strategies Plc and Another v London General Holdings Ltd and others: ChD 1 Mar 2004

In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the documents retained the characteristic which gave it protection from disclosure.

Judges:

Mann J

Citations:

[2004] EWHC 373 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .
Cited – Black v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 10 June 2022; Ref: scu.194434

Emerson (Executrix of James Henry Emerson) v Estate of Thomas Matthew Emerson: CA 5 Feb 2004

Two brothers farmed in partnership. The partnership was dissolved in 1998 on the death of one brother, but the business continued. The farm was affected by the foot and mouth outbreak in 2001, and the second brother died shortly after. Compensation became payable, and the two sets of executors sought directions as to how the compensation was to be accounted for.
Held: S42(1) had no application. The money constituted a post cessation capital receipt, and could not be deemed to have been part of profits. As such it fell to be distributed under s24(1).

Judges:

Brooke, Chadwick, Scott Baker LJJ

Citations:

Times 03-Mar-2004, Gazette 11-Mar-2004, [2004] EWCA Civ 170

Links:

Bailii

Statutes:

Partnership Act 1890 24(1) 42(1)

Jurisdiction:

England and Wales

Citing:

Cited – Popat v Shonchatra CA 25-Jun-1997
Partnership assets, both as to capital and revenue were to be divided equally between the partners in the absence of an agreement otherwise even though they had made an unequal contribution. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Company

Updated: 10 June 2022; Ref: scu.194274

Halifax plc and Others v Halifax Repossessions Ltd and Others: CA 2 Feb 2004

The claimant obtained orders against the respondent company as to the infringing use of their trademark. The court ordered the companies to cease to use the trademark name, but they did not change their company names. The claimants sought enforcement which was granted by means of an order to the Registrar of companies to change the names to any not including the word ‘Halifax’
Held: The court could not make such an order. Companies are creations of statute, and the registrar of companies could only act within the statutes. There might be other and serious consequencs of such a change being made other than as set out. It might well be undesirable for the Registrar to become involved between parties in a private dispute.

Judges:

Latham, Arden LJJ

Citations:

Times 11-Feb-2004, [2004] EWCA Civ 331

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Halifax Plc and others v Halifax Repossessions Ltd and others CA 10-Jul-2002
. .

Cited by:

See Also – Halifax Plc and others v Halifax Repossessions Ltd and others CA 10-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 June 2022; Ref: scu.193469

Bottin (International) Investments Limited v Venson Group Plc Grant Scriven Clive Lawson Smith: ChD 3 Feb 2004

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2004] EWHC 135 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

Appeal from – Bottin (International) Investments Ltd v Venson Group Plcgrant Scriven Clive Lawson Smith CA 22-Oct-2004
Under a share purchase agreement, ‘notice of the claim had to be made in writing ‘specifying such details of the event or circumstances giving rise to such claim as are available to the investor and an estimate (if capable of preparation by the . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 09 June 2022; Ref: scu.192611

Re Co-Operative Bank Plc: ChD 18 Nov 2013

Application by the Co-operative Bank Plc for an order convening a single meeting of creditors for the purpose of considering and, if thought fit, approving a scheme of arrangement to section 896 of the 2006 Act.

Judges:

Hildyard J

Citations:

[2013] EWHC 4072 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 896

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 09 June 2022; Ref: scu.519221

Moxon v Litchfield and Others, Re LCM Wealth Management Ltd: ChD 12 Dec 2013

The Petitioner sought redress in respect of (a) his removal from office as a director and his exclusion from management of the sixth respondent, LCM Wealth Management Limited and (b) the implementation (or purported implementation) of provisions in the Company’s Articles of Association and in an agreement between the Company’s shareholders which compel the transfer of Mr Moxon’s shares at par value if (as the other shareholders contend) he is to be characterised as a ‘Bad Leaver’ within the meaning of those provisions.

Judges:

Hildyard J

Citations:

[2013] EWHC 3957 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006

Jurisdiction:

England and Wales

Company

Updated: 09 June 2022; Ref: scu.518944

Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited: ChD 23 Jan 2004

There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to another company of whom he was a director. The defendant said the claimant had agreed to his acting independently in property development, and that their financial position meant they would not have been interested.
Held: The claimant remained receptive to development proposals. The defendant had repeatedly lied in his evidence. He was under a duty not to enter into transactions on his own account and also to account to the claimants even if they might not themselves have proceeded with the transaction.

Judges:

The Honourable Mr Justice Peter Smith

Citations:

Times 05-Feb-2004, [2004] EWHC 52 (Ch), [2004] 1 BCLC 468

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Keech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
Cited – New Zealand Netherlands Society ‘Oranje’ Inc v Laurentuis Cornelis Kuys PC 1963
(New Zealand) The scope of a fiduciary duty may be modified by a course of dealing by the person to whom the duty is owed. ‘The obligation not to profit from a position of trust, or, as it sometimes relevant to put it, not to allow a conflict to . .
Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – Industrial Development Consultants Ltd v Cooley 1972
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the . .
Cited – Island Export Finance v Umunna ChD 1986
The defendant director had resigned from the plaintiff company from dissatisfaction with its progress. He later received an order from the company’s former customer. The court considered the continuing duties of a company director after the . .
Cited – West Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Meridian Global Funds Management Asia Ltd v Securities Commission PC 26-Jun-1995
(New Zealand) The New Zealand statute required a holder of specified investments to give notice of its holding to a regulator as soon as it became aware of its holding. Unbeknown to any others in the company apart from one colleague, its chief . .
Cited – Satnam Investments Ltd v Dunlop Heywood and Co Ltd and Others CA 13-Jan-1999
Satnam’s agents (DH) had passed on confidential information to the claimant’s business rival (Morbaine). Armed with this information Morbaine acquired a development site which Satnam had wanted to buy.
Held: The court rejected an argument that . .
Cited – Schering Chemicals Ltd v Falkman Ltd CA 1982
The Defendants’ professional skills were engaged to present the plaintiff company in a good light, and an injunction was granted to restrain them from doing the opposite. Sach LJ said: ‘even in the commercial field, ethics and good faith are not to . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Warman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
Cited – Fyffes Group Ltd and Others v Templeman and Others QBD 14-Jun-2000
A person who bribed an agent to award a contract was liable to account for profits secured by the bribery as was the agent he bribed, but unlike for the agent, the extent of his liability was limited to exclude profits which he would have earned in . .
See also – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 1-Apr-2004
The judge had handed down a judgement relying upon undertakings given by the parties. Though there appeared a possibility that one party had breached that undertaking no further action was to be taken. . .

Cited by:

See also – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 1-Apr-2004
The judge had handed down a judgement relying upon undertakings given by the parties. Though there appeared a possibility that one party had breached that undertaking no further action was to be taken. . .
Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Cited – Ultraframe (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: 08 June 2022; Ref: scu.192107

Chaston v SWP Group Plc: CA 20 Dec 2002

The ‘general mischief’ of Section 151 was to stop the resources of the target company and its subsidiaries being used directly or indirectly to assist the purchase financially to make the acquisition. The reason for this is that it might prejudice the interests of the creditors of the target group and the interest of any shareholders who accept the offer to acquire their shares or to whom the offer is made.

Judges:

Arden LJ

Citations:

[2002] EWCA Civ 1999, [2003] 1 BCLC 655

Links:

Bailii

Statutes:

Companies Act 1985 151

Jurisdiction:

England and Wales

Cited by:

Cited – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 June 2022; Ref: scu.188988

Venables 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 income tax under Schedule E.
Held: (Majority) The appeal by the taxpayer was allowed. The fact that he had stayed on in an unpaid capacity did not prevent him being treated as having retired as an employee. That he had a substantial shareholding did not prevent him being an employee. The question was whether the definition treated the definitions of employee and director as coterminous. The definition did not equate the two ideas; the definition of an employee only ‘included’ that of an employee. A retirement either as director or as employee was sufficient. He had retired as an employee.

Judges:

Lord Nicholls of Birkenhead, Lord Slynn of Hadley, Lord Millett, Lord Scott of Foscote, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 65, Times 05-Dec-2003

Links:

House of Lords, Bailii

Statutes:

Income and Corporation Taxes Act 1988 600, Finance Act 1970

Jurisdiction:

England and Wales

Citing:

Appeal from – David J Venables and Others v Hornby (Inspector of Taxes) CA 18-Sep-2002
The appellant was an employee and director of the company. He ceased employment, and sought to receive payments from his pensions, but continued to hold the position of director.
Held: The provisions of the pension scheme had to be read in the . .
Cited – Brock v Bradley 1864
A legacy to a single woman if she survives her husband takes effect if she never marries. . .
Cited – Jones v Westcomb 1711
A gift on a contingency which does not occur nevertheless takes effect on the happening of an event which is a fortiori. . .
Cited – Murray v Jones 1813
A gift over in the event of a prior legatee having only one child takes effect if the prior legatee has no child. . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Company

Updated: 08 June 2022; Ref: scu.188436

In the Matter of Drax Holdings Limited and in the Matter of InPower Limited: ChD 17 Nov 2003

A company incorporated in Jersey comes within the Act for the purposes of the section. An English court has jurisdiction to wind up a foreign company if it has assets here or some other sufficient connection with this country.

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 2743 (Ch), [2004] 1 WLR 1049, [2004] 1 BCLC 10

Links:

Bailii

Statutes:

Companies Act 1985 425

Jurisdiction:

England and Wales

Citing:

Cited – In the Matter of Hawk Insurance Company Limited CA 23-Feb-2001
Arrangements for putting in place voluntary arrangements for companies. Discussing Sovereign Insurance: ‘When applying Bowen LJ’s test to the question ‘are the rights of those who are to be affected by the scheme proposed such that the scheme can be . .

Cited by:

Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 08 June 2022; Ref: scu.188058

Her Majesty’s Commissioners of Inland Revenue v Laird Group plc: HL 16 Oct 2003

Was the payment of a dividend in respect of shares ‘a transaction in securities’ or ‘a transaction relating to securities’ within the meaning of section 703.
Held: ‘As a matter of ordinary language, the creation, issue, sale, purchase, exchange, redemption and extinguishment of shares or debentures are all ‘transaction[s] in securities’. The word ‘securities’ includes not only stocks and shares of every description, including preference shares, but also debentures and unsecured loan notes. Appeal allowed.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 54, Gazette 13-Nov-2003

Links:

House of Lords, Bailii

Statutes:

Income and Corporation Taxes Act 1988 703

Jurisdiction:

England and Wales

Citing:

Appeal from – Inland Revenue Commissioners v Laird Group plc CA 30-Apr-2002
The taxpayer had sources of foreign income. Arrangements were made to take the benefit through the payment of interim dividends, which it intended to use to set off against liability for advance corporation tax. The Commissioner contended that these . .
Cited – Inland Revenue Commissioners v Joiner HL 26-Nov-1975
HL Surtax – Tax advantage – Transaction in securities – Company recon- struction – Surplus assets o f old company distributed in voluntary liquidation – Agreement for liquidation providing for agreed methods o f . .
Cited – Inland Revenue Commissioners v Parker HL 1966
A company capitalised a sum standing to the credit of its profit and loss account and applied it in issuing redeemable debentures to its members in proportion to the amounts paid up on their shares. The company subsequently redeemed the debentures . .
Cited – Greenberg v Inland Revenue Commissioners HL 1972
A company created a new class of preferred shares which it issued credited as fully paid to its two shareholders. They sold the shares to a purchaser on terms that the price was to be paid by instalments. Under arrangements made between the parties . .
Cited – Borland’s Trustee v Steel Brothers and Co Ltd 1901
Mr Borland was a shareholder. The company’s articles contained pre-emption rights, such that on a shareholder’s bankruptcy, he had, on receiving a transfer notice from the directors, to transfer his shares to a manager or assistant at a fair value . .
Cited – Short v Treasury Commissioners CA 1948
‘shareholders are not, in the eye of the law, part owners of the undertaking’ A share is classified as a chose in action, a species of intangible personal property. . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, Company

Updated: 08 June 2022; Ref: scu.186772

Official 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 explicitly given the requisite powers to the receiver whether or not he was the liquidator. Nor was the purpose of the use restricted. The task of the receiver was not just to collect and get in the assets of the company, but also to carry out the other acts expected of him. Section 236 extended the meaning of ‘office-holder’ in this context to the Official Receiver, who was duty bound to investigate and report. His functions in a winding up were not limited to the collection and redistribution of the assets, but included investigation of its officers for the purpose of the public good of testing their conduct. The two Acts were intended to work together. The need to protect the public justified a wider reading of the statutes if necessary.
The section was constructed on the basis that such applications would be better made by the Official Receiver than the Secretary of State, because of his close knowledge of the company’s affairs. The power was not restricted by the grant of similar but more limited powers under the Disqualification Act. A restriction of the kind sought would severely limit the powers in insolvency properly to investigate the company’s actions.

Judges:

Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Millett, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 49, [2003] BCC 659, [2003] 2 BCLC 257, [2003] 4 All ER 18, [2004] 1 AC 158, [2004] BPIR 139, [2003] 3 WLR 767

Links:

Bailii, House of Lords

Statutes:

Insolvency Act 1986 236, Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Pantmaenog Timber Co Ltd CA 25-Jul-2001
The Official Receiver could not use the powers given to him for the purposes of his insolvency duties to require production of documents form solicitors and accountants, to satisfy duties placed on him by the Secretary of State for the purpose of . .
Cited – In re Polly Peck International plc, Ex parte the joint administrators ChD 1994
The purposes of a liquidation, or administration or receivership of a company must include the gathering of information as to the conduct of the affairs of the company, and those who had conducted them so that the office-holder can report to the . .
Cited – Bishopsgate Investment Management Ltd (in Liquidation) v Maxwell CA 16-Feb-1993
The fundamental wrong in the directors’ acts lay in the signing of transfers of the company’s assets and not entirely in their failure properly to enquire as to the nature of other transaction. The breach of fiduciary duty lay in positive acts. . .
Cited – In re Paget CA 1927
The purpose of the public examination of a debtor is not merely to obtain a full and complete disclosure of his assets and the facts relating to the bankruptcy in the interests of the creditors, but also to protect the public: ‘To concentrate . .
Cited – In re London and Globe Finance Corporation Ltd ChD 1903
A company which had gone from voluntary winding up, first to winding up under supervision and then to compulsory winding up, with the official receiver as liquidator. The company’s former managing director was suspected of fraud, but the law . .
Cited – In re Jeffrey S Levitt Ltd ChD 1992
The provisions of the two Acts are intended to be part of the same statutory scheme and are to be read in combination. . .
Cited – In re John Tweddle and Company Ltd CA 1910
The court discussed the official receiver’s enquiries and report leading up to the public examination of former directors. Farwell LJ said: ‘Now those are functions of a judicial character which are cast upon him, not in the liquidation of the . .
Cited – Bishopsgate Investment Limited v Maxwell CA 1999
A person required to answer questions under the section may not refuse to answer on the ground of self-incrimination. (Dillon LJ) ‘It is plain to my mind – and not least from the Cork Report – that part of the mischief in the old law before the . .
Cited – Re North Australian Territory Co 1890
The powers given under the sections should not be used oppressively. . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 07 June 2022; Ref: scu.185421

Contract Facilities Ltd v Estate of Rees(dec’d) and others: CA 23 Jul 2003

Where a stay is sought, all the circumstances must be considered. The court must consider whether the appeal would be stifled. One must not only look at the means of the appellant himself but also consider whether the money could be raised from ‘backers or interested persons’.

Citations:

[2003] EWCA Civ 1191

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Prince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 07 June 2022; Ref: scu.185524

Dunblane Property Limited Anthony Richard Rand, v Motorcare Holdings Limited Motorcare Services Limited,: CA 29 Jul 2003

The claimants sought damages for breach of a share sale agreement. The decision concerned the particular terms of this agreement.

Judges:

Lord Justice Clarke Lord Justice Sedley The President

Citations:

[2003] EWCA Civ 1033

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract

Updated: 07 June 2022; Ref: scu.184855

J J Coughlan Ltd v Ruparelia and others: CA 21 Jul 2003

The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, or whether, without distortion of language, it can be given the label of a transaction in which solicitors ordinarily engage. Rather, it is necessary to examine the substance of the transaction to see whether, viewed fairly and properly, it is the kind of transaction which forms part of the ordinary business of a solicitor.’ This transaction, promising huge returns could not be seen in this way. Appeal dismissed.

Judges:

Lord Justice Peter Gibson, Lord Justice Dyson And Lord Justice Longmore

Citations:

[2003] EWCA Civ 1057, Times 26-Aug-2003, Gazette 02-Oct-2003, [2007] Lloyd’s Rep PN 25

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Lloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
Cited – United Bank of Kuwait Ltd v Hammond and Others CA 1988
It will only be in the ordinary course of business of the firm for a solicitor to do an act where there was an underlying transaction of a kind which was part of the usual business of a solicitor. ‘On the facts represented to the [third party] would . .
Cited – Hirst v Etherington and Another CA 21-Jul-1999
A solicitor, who re-assured a lender that his guarantee of a borrower’s loan, was given by him in the normal course of business, was not in fact so acting. The lender, if wanting to rely upon that re-assurance to claim against the solicitor’s . .
Cited – Uxbridge Permanent Building Society v Pickard CA 1939
It is not within the actual authority of a solicitor’s clerk to commit a fraud. But it is within his ostensible authority to perform acts of the class which solicitors would normally carry out: ‘so long as he is acting within the scope of that class . .
Cited – Langley Holdings v Seakens QBD 19-Oct-2000
The claimant sought recovery from one of two partners in a solicitors’ firm of solicitors of sums paid to the firm and misappropriated by the partner, who had conspired with others to offer a fraudulent investment. The claimant admitted that the . .
Cited – Kooragang Investments Pty Ltd v Richardson and Wrench Ltd PC 27-Jul-1981
(New South Wales) An employee of the defendants was authorised to carry out valuations, but he negligently carried out an unauthorised private valuation.
Held: In doing so he was not acting as an employee of the defendant company. The company . .
Cited – Snook 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 07 June 2022; Ref: scu.184826

Goldstein v Levy Gee ( A Firm): ChD 1 Jul 2003

There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for valuation.
Held: Part of the skills of a chartered accountant, especially one who is willing to undertake a valuation of shares, is the valuation of shares. The properties should not have been valued on a portfolio basis. Too great a deduction for contingent tax was allowed. A deduction for non-listed status was based on an error of principle, but was within the permissible range. He was not negligent in making a deduction to reflect a 75 per cent probability that the options would be exercised. The permissible range is between 50 and 75 per cent. The mean is 62.5 per cent. The valuation remained within the permissible range. Negligence would not be shown if the figure advised was within the range of permissible figures, even if it was reached negligently. Where a figure was made up of several others, a brackert was to calculated for each, not just for those involving negligence. No loss was shown and the action dismissed.

Judges:

The Honourable Mr Justice Lewison

Citations:

Gazette 11-Sep-2003, HC 02 C00884, [2003] EWHC 1574 (Ch), Times 16-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Singer and Friedlander Ltd v Wood 1977
Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .
Cited – Mount Banking Corporation Ltd v Brian Cooper and Co QBD 1992
The plaintiff submitted that where the final valuation figure is within the Bolam principle, an acceptable figure, albeit towards the top end, but where none the less the valuer has erred materially in reaching that figure, the plaintiff can succeed . .
Cited – Zubaida v Hargreaves CA 1995
In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as . .
Cited – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Cited – Lion Nathan Limited and others v C C Bottlers Limited and others PC 14-May-1996
(New Zealand) A company was sold with a warranty that the sales figures would meet projected earnings. The purchaser successfully complained after the event that the figures were false and misleading. They appealed an order increasing the damages on . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Legal and General Mortgage Services v HPC Professional Services 1997
The claimant submitted that he was entitled to succeed in his claim gthat a valuation was negligent, either by showing that the valuer’s final figure was outside the bracket within which any competent valuer using reasonable skill and care could . .
Cited – Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA 22-Apr-1999
An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Curry’s Group Plc v Martin QBD 13-Oct-1999
The valuer valued a lease for a rent review clause, after advice, on the basis that the rent stated was to be a headline rent. The claim was dismissed because a valuer acting in such a situation was not substantially different from one undertaking a . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Sansom and Another v Metcalfe Hambleton and Co CA 17-Dec-1997
The court warned against finding a professional to have been negligent on the evidence of an expert who was not a member of the same profession. A structural survey was prepared by a chartered surveyor. Expert evidence for the plaintiff was given, . .
Cited – Whiteoak v Walker ChD 1988
The articles of association of a private company provided for shares to be valued by the auditor. The plaintiff transferred shares at a price fixed by the auditor, and subsequently alleged that the valuation was negligently made. One of the issues . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence

Updated: 07 June 2022; Ref: scu.184170

Cranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc: CA 14 May 2003

In each case claims had been late in being served and extensions in time were sought and refused.
Held: The recent authorities were examined. The words ‘has been unable to serve’ in CPR 7.6(3)(a) include all cases where the court has failed to serve, including mere oversight. The court’s discretion might then be exercised according to the source of the inability. The power to dispense with service should not be used to undermine requirements for timely service. A claimant may serve the claim form on a defendant company either by leaving it at, or by sending it by post to, the company’s registered office, or by serving it in accordance with one of the methods permitted by the CPR, but it is the original claim form which must be served. There are two conditions precedent for the operation of the provisions of CPR 6.5(6), namely that (a) no solicitor is acting for the party to be served, and (b) the party has not given an address for service. If those conditions are satisfied, then the rule states that the document to be sent must be sent or transmitted to, or left at, the place shown in the table. In the case of an individual, that means at his or her usual or last known residence.

Judges:

Lord Justice Ward, Lord Justice Waller and Lord Justice Dyson

Citations:

[2003] EWCA Civ 656, Times 16-May-2003, [2003] 1 WLR 2441

Links:

Bailii

Statutes:

Civil Procedure Rules 6.9 7.6(3)(a), Companies Act 1985 725(1)

Jurisdiction:

England and Wales

Citing:

Cited – Godwin v Swindon Borough Council CA 10-Oct-2001
The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The . .
Cited – Nanglegan v Royal Free Hampstead NHS Trust CA 23-Jan-2001
The requirement is that documents must be served at the address nominated for this purpose by the prospective defendant under the rules. Where a solicitor was so nominated, it was not open to the claimant to serve papers at a different address. In . .
Cited – Vinos v Marks and Spencer plc CA 2001
The appellant claimed personal injuries. His solicitors issued a claim form within the limitation period, but only served it after the expiry of the four month period after the date of issue within which CPR 7.5 stipulated that the claim had to be . .
Cited – Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Cited – Godwin v Swindon Borough Council CA 10-Oct-2001
The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The . .
Cited – Elmes v Hygrade Food Products Plc CA 24-Jan-2001
Where a claim form is served in time but is incorrectly served (in this case on the defendants’ insurers instead of on the defendants themselves), there is no power in the court under CPR 3.10(b) (remedy of errors of procedure) or CPR 6.8 (service . .
Cited – Wilkey and Another v British Broadcasting Corporation and Another CA 22-Oct-2002
The applicant’s claim had been dismissed for late service. The defendant had in fact received the documents, but the service appeared deemed to be out of time. The subsequent decisions of Anderton and Godwin meant that the judge’s reasoning no . .
Cited – Kenneth Allison Ltd v AE Limehouse Ltd HL 1992
If one party, knowing that another wishes to serve process upon him, requests or authorises the other to do so in a particular way which is outside the Rules and the other does so, then, unless the Rules themselves prohibit consensual service, the . .

Cited by:

Cited – Basil Shiblaq v Kahraman Sadikoglu (No 2) ComC 30-Jul-2004
The court considered whether there had been effective service of proceedings on defendants in Turkey. Evidence was given as to the effectiveness of such service in Turkish law.
Held: The defendant’s application to set aside the judgment in . .
Cited – Firstdale Ltd v Quinton ComC 5-Aug-2004
In the course of a long dispute, the defendant’s solicitors had indicated that they would accept service of proceedings. Just before the limitation period expired, the papers were served directly in the client. The defendants solicitors said that . .
Cited – Uphill v BRB (Residuary) Ltd CA 3-Feb-2005
The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an . .
Applied – Asia Pacific (Hk) Ltd. and others v Hanjin Shipping Co Ltd (Hanjin Pennsylvania) ComC 7-Nov-2005
Various cargo owners sought damages against the owners of the ship which had suffered an explosion with the loss of the cargo. The defendants asserted limitation. Some claimants had agreed an extension of time. Proceedings were then issued but . .
Cited – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Cited – Kamali v City and Country Properties Ltd CA 24-Jul-2006
The defendant tenant appealed against judgment saying that the proceedings in the County Court had not been correctly served. Though the documents had been sent to his address under the lease, he had been out of the jurisdiction when the claim was . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Company

Updated: 07 June 2022; Ref: scu.182145

Knight and Another v Haynes Duffell, Kentish and Co (A Firm): CA 14 Feb 2003

Solicitors had allowed the claimants’ cause of action against their original solicitors to become time barred. One issue now was whether the trial judge was right to find that the original solicitors had improperly paid out monies held on client account for completion of an investment in shares of a private company and were in consequence liable to reconstitute the trust fund. The instructions given to the original solicitors were only to pay over the monies held against completion of both the issue of shares to the investors and the assignment to them of the benefit of a trade name, which they required as security for their investment. In fact the funds were released at the completion meeting when the shares were issued but the assignment of the trade name was not executed. If it had been, it would probably have been valueless in any event, as matters transpired, and it was argued that the investors had therefore suffered no loss.
Held: Aldous LJ said: ‘The second ground upon which the defendants sought permission to appeal was that the judge had wrongly concluded that the breach of trust had caused the applicants loss. They submitted upon the basis of the speech of Lord Browne-Wilkinson in Target Holdings Ltd v Redferns [1996] AC 421, that the remedy for the breach of this trust was not reconstitution of the trust fund, but to put the claimants in the position that they would have been in but for the breach. In the present case the breach had been the failure to obtain the assignment. To remedy that breach Linnells needed to compensate the claimants for the loss of that assignment. In the present case that loss was negligible in that the trade mark had proved to be valueless or there was no evidence to prove that it was of substantial value.
I reject that submission for two reasons. First, in the present case the breach was the release of the money. The trust required the money to be held against provision of both the shares and the assignment. As there had been no assignment, the money should not have been paid out. Second, the principle in Target only applies where the underlying transaction covered by the trust had been completed . .
In the present case there was a trust fund made up of money supplied by Mr Knight, Mr Hodgkinson, Mr McIntosh and subsequently Mr Keay. The transaction had not been completed. The breach was the payment and the remedy for that breach is reconstitution of the trust fund. The judge was right to reject this submission and there are in my view no grounds for giving permission to appeal.’

Judges:

Aldous LJ

Citations:

[2003] EWCA Civ 223

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – UCB Loans v Grace and others 2011
The solicitors paid out the mortgage advance without having received a mortgage document executed by the borrower at all. It was conceded that such payment was made without authority.
Held: The solicitors had acted in breach of trust. No . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence

Updated: 07 June 2022; Ref: scu.181131

The Secretary of State for Trade and Industry v Michael Hamilton Amiss, Jonathan Andrew Chapman, Roger Rex Ingles: ChD 20 Mar 2003

The Secretary sought disqualification orders, under section 8 which left the court with a discretion as to whether an order should be made.
Held: It was not necessary to establish dishonesty to a Twinsectra standard to justify an order. The case followed findings in substantial litigation. It was not realistic of the director to suggest that he had had a proper defence in that action. He did not. The fact that others might be involved did not reduce the applicant’s culpability.

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2003] EWHC 532 (Ch)

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 1A 8

Jurisdiction:

England and Wales

Citing:

Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – In re Samuel Sherman Plc 1991
Disqualifications under section 8 should be of similar length to those recommended in the Sevenoaks Stationers for disqualifications under section 6. . .
Cited – re Swift 736 Limited 1993
The purpose of the jurisdiction created under the Act is to promote better management standards in companies. . .
Cited – In the Matter of Blackspur Group Plc; Secretary of State for Trade and Industry v Davies; Thomas; Thompson; Andrew CA 19-Nov-1997
The Secretary of State may perfectly properly refuse to accept offered undertakings and instead decide to prosecute company directors under the Act, even though though the terms offered were intended to give equivalent effect. The purpose of the . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – re Queen’s Moat House Plc ChD 5-Dec-2001
The interests of justice are unlikely to require a second investigation of facts, which have already been the subject matter of an exhaustive examination. . .
Cited – In re Thomas Christy Limited ChD 1994
Findings by a Lloyds’ disciplinary committee could not give rise to an issue estoppel in later court proceedings. . .
Cited – Deakin and Others v Faulding and Others; Specialist Group International Ltd v Deakin and Others; etc ChD 31-Jul-2001
Directors of a company authorised payment of bonuses, but the power to do so lay with the shareholders, not the directors. However, the beneficial owner of a share held for him by a nominee could give assent to a motion of the company at a general . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 June 2022; Ref: scu.180334

Bhullar and others v Bhullar and Another: CA 31 Mar 2003

The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own company name.
Held: The company had not been looking to acquire further property, and the purchase could not be described as a developing business opportunity in the standard sense. Where a fiduciary has exploited a commercial opportunity for his own benefit, the relevant question is not whether the party to whom the duty is owed had some kind of beneficial interest in the opportunity: that would be too formalistic and restrictive an approach. Rather, it is simply whether the fiduciary’s exploitation of the opportunity is such as to attract the application of the rule. Each case must be viewed on its own facts. In this case there was a conflict, and the director had acted in breach of his duty to the company. The directors were liable for profits resulting from the acquisition of a property neighbouring that of their company even though they had obtained this information not as directors but as passers-by: ‘the existence of the opportunity was information which it was relevant for the company to know, and it follows that [the directors] were under a duty to communicate it to the company.’

Judges:

Lord Justice Brooke Lord Justice Schiemann Lord Justice Jonathon Parker

Citations:

[2003] EWCA Civ 424, [2003] 2 BCLC 241

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – Aberdeen Railway Co v Blaikie Brothers HL 1854
The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of . .
Cited – New Zealand Netherlands Society ‘Oranje’ Inc v Laurentuis Cornelis Kuys PC 1963
(New Zealand) The scope of a fiduciary duty may be modified by a course of dealing by the person to whom the duty is owed. ‘The obligation not to profit from a position of trust, or, as it sometimes relevant to put it, not to allow a conflict to . .
Cited – Parker v McKenna CA 1874
The directors of a bank acquired for themselves, and made a profit on, certain shares the subject of a new issue that were not taken up by the bank’s shareholders.
Held: James LJ said: ‘I do not think it is necessary, but it appears to me very . .
See Also – Bhullar and others v Bhullar and others CA 26-Sep-2002
Renewed application for leave to appeal . .

Cited by:

Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Cited – Ultraframe (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 . .
Cited – O’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 07 June 2022; Ref: scu.180322