The court was asked whether the first defendant (‘Crispian’) validly and effectively commenced a right of first refusal (‘ROFR’) procedure contained in a shareholders’ agreement
Phillips J
[2018] EWHC 2415 (Comm)
England and Wales
Updated: 30 May 2022; Ref: scu.625931
[2018] NICh 13
Northern Ireland
Updated: 30 May 2022; Ref: scu.625570
[1838] EngR 397, (1838) 4 Bing NC 286, (1838) 132 ER 798 (A)
England and Wales
Updated: 30 May 2022; Ref: scu.312403
Miss Trittin left her share certificates with a broker. A forged transfer together with the certificates, was lodged with and with registered by the company. The new certificates certified that the named person as registered holder. He then sold them to innocent purchasers who in turn lodged transfers and certificates and obtained certificates in their own names. The company had become obliged to restore Miss Trittin’s name to the register but refused to recognise the innocent purchasers as shareholders. A special case was stated for the opinion of the Court between the innocent purchasers as claimants and the company for the purpose of determining the amount of damages (if any) which the company was liable to pay them respectively.
Held: The claimant succeeded.
Lord Cockburn CJ: ‘This power of granting certificates is to give the shareholders the opportunity of more easily dealing with their shares in the market, and to afford facilities to them of selling their shares by at once showing a marketable title, and the effect of this facility is to make the shares of greater value. The power of giving certificates is, therefore, for the benefit of the company in general; and it is a declaration by the company to all the world that the person in whose name the certificate is made out, and to whom it is given, is a shareholder in the company, and it is given by the company with the intention that it shall be so used by the person to whom it is given, and acted upon in the sale and transfer of shares. It is stated in this case that the claimants acted bona fide, and did all that is required of purchasers of shares; they paid the value of the shares in money on having a transfer of the shares executed to them, and on the production of the certificates which were handed to them. It turned out that the transferors had in fact no shares, and that the company ought not to have registered them as shareholders or given them certificates, the transfer to them being a forgery. That brings the case within the principle of the decision in Pickard -v- Sears [6 AD and E 469] as explained by the case of Freeman -v- Cooke [2 Ex 654] that if you make a representation with the intention that it shall be acted upon by another, and he does so, you are estopped from denying the truth of what you represent to be the fact.’
Blackburn J referred to the Companies Act and said:- ‘The statute further provides that the company may give certificates specifying the shares held by the member; and the object of this provision is expressly stated to be that this certificate should be prima facie evidence of the title of the person named to the shares specified; and the company, therefore, by granting the certificate, do make a statement that they have transferred the shares specified to the person to whom it is given, and that he is the holder of the shares. If they have been deceived and the statement is not perfectly true, they may not be guilty of negligence, but the company and no-one else have power to enquire into the matter; and it was the intention of the legislature that these certificates should be documents on which buyers might safely act,’ and ‘ . . . it is quite clear that a statement of a fact was made by the company, on which the company, at the very least, knew that persons wanting to purchase shares might act.’
Lush J referred to the certificate given by the company to the fraudsters:- ‘And the claimants having acted on this statement by the company, there arises an estoppel as against the company, prohibiting them from denying that what it states is true. And the question then is, what does the certificate mean? Does it mean merely, that [the fraudsters’ names] are on the register, and the company have done their best to ascertain that they are entitled to the shares, but cannot say whether they are so entitled? Or does it amount to a statement that the company take upon themselves the responsibility of asserting that they are the registered shareholders entitled to the specific shares? I think the certificate must amount to the latter assertion. It is the company who are to keep and look after the register, and they are the only persons who have control over it, and they can refuse to register a person until he shews that he is legally entitled. Having, therefore, put the names of [the fraudsters] upon the register, and granted them a certificate, the company are estopped after that statement has been acted upon and cannot deny that those persons were the legal holders of the particular shares which have been transferred to the claimants. The claimants, therefore, are entitled to recover from the company the value of the shares at the time when they were deprived of them.’
Lord Cockburn CJ, Blackburn J, Lush J, Mellor J
(1868) LR 3 QB 584
England and Wales
Cited – The Balkis Consolidated Co Ltd v Tomkinson and Others HL 1893
Tomkinson, a stockbroker, bought shares was registered by the company and received share certificates, and then sold them. The company found that the vendor to him had previously sold the shares to someone else who had been duly registered. The . .
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. . .
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.
Updated: 30 May 2022; Ref: scu.242171
A French partnership did not carry on business within the UK. It was sued in its firm name in respect of a contract signed in the name of the firm. The evidence of French law did not establish that the French partnership was a totally separate legal entity from the individual partners in it, although it was a legal person for the purpose of service of legal proceedings upon it.
Held: The Court upheld the judge’s order setting aside the writ which named the firm as the defendant on the ground that Ord 48A did not apply and that the writ was not properly issued naming the firm as a defendant.
Phillimore LJ: ‘According to our modern practice there are three classes who can sue, or appear to writs, – persons, corporations, and firms. The introduction of partnerships is comparatively modern and since the Judicature Act, but the fact is merely for convenience of nomenclature and of service; the results are in the end the same as if the individuals composing them sued or were sued by their individual names. It is clear from the case of Dobson v Festi, Rasini and Co (1) that some similar procedure now obtains in Italy, and it appears from this case that some similar procedure now exists in France. That may well be, but our law, being very careful how it interferes with the rights of foreigners, has not allowed service to be effected upon individuals who are engaged in a foreign partnership by serving the partnership as in England. The foreign partners cannot be sued by their firm name, and there is nothing to enable service upon some manager carrying on business for the partners or service on one as service on the rest.’
and ‘They are not enough for this purpose; they are not enough to shew – which is necessary for this purpose – that a societe en nom collectif is like a corporation in this respect, not merely that it has a separate persona, but that it has a separate ownership of property and separate liability from the ownership or liability by or of the persons composing the aggregation. I can conceive certain cases of bodies of which one might be doubtful whether they were corporations or not; and upon a writ properly framed alleging that the body sued was a separate entity, and making it clear that no relief was sought against any individual opposing that entity any more than it would be against shareholders in a corporation, I can conceive it being possible to suggest that such a body might be treated as a corporation and might be sued and served as a corporation. But this is on the face of it apparently a partnership, and the affidavit of service of the writ plainly and boldly describes it as a partnership. The rules of English law provide that our ancient process in respect of English people should remain in respect of foreigners.’
Buckley Phillimore LJJ
[1914] 1 Ch 748
England and Wales
Updated: 30 May 2022; Ref: scu.183335
Construction of share purchase agreements.
[1999] EWCA Civ 678, [1999] STC 301
England and Wales
Cited – Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc SC 23-Jan-2013
A predecessor bank had created a trust into which it paid a small proportion of its profits. The parties now disputed the calculation of profits when the Bank declared a loss which allowed for an unrealised gain on the acquisition of HBOS. . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 May 2022; Ref: scu.145593
The company made a claim to recover the borrowing costs incurred to buy property in breach of s320 (no shareholder approval). The acquisition of the property had been unprofitable, and the company was held to be entitled to recover from the defendant directors the loss resulting form the acquisition.
Held: The indemnity given to a company by its directors in respect of the purchase of property from a director, did not extend beyond the losses actually suffered to the borrowing costs of the acquisition.
Times 07-Jan-1999, Gazette 27-Jan-1999, [1998] EWCA Civ 1795, [1999] Ch 268
England and Wales
See also – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .
See also – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .
Cited – Murray v Leisureplay Plc QBD 5-Aug-2004
The claimant sought payment of three years’ salary after termination of his service contract. He said that an agreement had been made by the company to purchase a ‘financial institution’, which would trigger the additional payments. The defendants . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 May 2022; Ref: scu.145274
Application for leave to appeal agaist orders made against the directors of Barings plc following its collapse. The appellants alleged abuse of process and unfairness and double jeopardy.
Held: ‘It is true that the underlying facts of the charges brought by the SFA and the Secretary of State are the same. However, as Lord Justice Chadwick has set out very fully in his judgment, the status, the issues and the consequences of the two sets of proceedings have very important differing features. ‘ The application was dismissed.
Swinton Thomas, Waller, Chadwick LJJ
[1998] EWCA Civ 943, [1999] 1 WLR 1985, [1999] 1 BCLC 226, [1999] BCC 639, [1999] 1 All ER 311
Company Directors Disqualification Act 1986
England and Wales
Updated: 30 May 2022; Ref: scu.144422
Five non-executive directors of a failed insurance company sought leave to appeal refusal of a strike out of a claim made against them personally by the liquidator.
[1998] EWCA Civ 642
England and Wales
Updated: 30 May 2022; Ref: scu.144120
Construction of a partnership agreement – retirement of partner
[2019] EWCA Civ 346
England and Wales
Updated: 30 May 2022; Ref: scu.634302
[2018] EWHC 3201 (Ch)
England and Wales
Updated: 30 May 2022; Ref: scu.631383
A charity entered into a contract for the sale of land. It failed to comply with the requirements under the Act. The purchaser assigned the benefit of the contract, to the claimant who sought to enforce the contract.
Held: The section only allowed a completed transaction to be rescued. An uncompleted contract was not itself a sale or transaction to which 36(1) could apply. The section did not f make the transaction void, but in the absence of an order of the court or the Charity Commission a transfer made following the contract would be void. Because the purchaser had become aware of the failure before completion, he could not compel completion. Directors of a charitable company would be acting ultra vires in entering into such a contract, and therefore the transaction could not either be saved under sections 35, 35A of the 1985 Act. The transaction could not be rescued.
Chadwick, Rix LJJ
Times 05-Nov-2003
Charities Act 1993 36(1) 37(4), Companies Act 1985 35 35A
England and Wales
Disapproved – Milner v Staffordshire Congregational Union (Inc) ChD 1956
The plaintiff had contracted to buy land from a charity. The consent of the Charity Commissioners had not been obtained, but the contract was not conditional on such consent. When the charity trustess realised that consent was required they told the . .
Appeal from – Bayoumi v Women’s Total Abstinence Union Ltd and Another ChD 21-Jan-2003
The claimant sought specific performance of a contract to purchase land from the defendant charity. The defendant had not complied with its obligations under the Act. The cliamant sought to say at the transaction came within s36(3) (that it was . .
Cited – Attorney General v South Sea Co 1841
Subject to the terms upon which the land had been conveyed to them, charitable corporations and charity trustees had the power to sell, lease or mortgage charity land. But any such transaction might be set aside in equity unless it was shown to be . .
Cited – In re Clergy Orphan Corporation CA 1894
The court considered the extent of the prohibition on restrictions on the sale of land by a charity to land forming part of the endowment of the charity.
Held: Davey LJ said: ‘All property of every description belonging to or held in trust for . .
Cited – Manchester Diocesan Council for Education v Commercial and General Investments Ltd 1969
The school governors were required to obtain consent before selling land formerly used as a school.
Held: The court rejected a submission that that consent was a necessary pre-requisite for a contract could be made at all: ‘Reliance is placed . .
Cited – Michael Richards Properties Ltd v Corporation of Wardens of St Saviour’s Parish Southwark 1975
Property was offered for sale by tender. The tender documents contained all the detailed terms upon which the contract was to be based. The successful tender was accepted by letter, but by mistake the secretary who typed it typed in the words . .
Cited – Haslemere Estates Ltd v Baker 1982
A contract for the sale of land by a charity was expressed to be subject to and conditional upon the grant of a consent before 31 March 1982 and if consent was not granted before that date then the contract was to be ‘null and void and of no further . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 May 2022; Ref: scu.187941
In considering the removal of a liquidator, the court referred to the John Moore Gold case: ‘In my opinion, although of course unfitness discovered in a particular person would be a ground for removing him, yet the power of removal is not confined to that, and I do not think that the late Master of the Rolls in the case of In re Sir John Moore Gold Mining Company ((1879) 12 ChD 325 at 331), which has been cited, intended to give an exhaustive definition.’ (Cotton LJ). It is not necessary in order to justify the court under the section in removing the liquidator that there should be anything against the individual. However, in this case the liquidator: ‘may consider that the judgment of this Court is not based in any way on the possibility of any reflection upon himself, either in his conduct in this matter or in his general fitness to be a liquidator of any honourable company in the kingdom – his character is clear.’ and ‘In many cases, no doubt, and very likely, for anything I know in most cases, unfitness of the liquidator will be the general form which the cause will take upon which the Court in this class of case acts, but that is not the definition of due cause shewn. In order to define ‘due cause shewn’ you must look wider afield, and see what is the purpose for which the liquidator is appointed. To my mind the Lord Justice has correctly intimated that the due cause is to be measured by reference to the real, substantial, honest interests of the liquidation, and to the purpose for which the liquidator is appointed. Of course, fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and real interest of the liquidation.’ (Bowen LJ)
Cotton LJ, Bowen LJ
(1887) 36 Ch D 299, [1887] UKLawRpCh 148, (1887) 57 LJCh 127
England and Wales
Cited – Re Sir John Moore Gold Mining Co CA 1879
The court considered an appeal against an order removing the liquidator: ‘I should say that, as a general rule, [the words ‘on cause shown’] point to some unfitness of the person – it may be from personal character, or from his connection with other . .
Cited – In re Keypak Homecare Ltd ChD 1987
The court considered an application under section 108 to remove the liquidator, and reviewed the case law on the topic: ‘The section authorises the court to remove the liquidator ‘on cause shown’. That is not the same as saying ‘if the court shall . .
Approved – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 May 2022; Ref: scu.215940
The court considered an application under section 108 to remove the liquidator, and reviewed the case law on the topic: ‘The section authorises the court to remove the liquidator ‘on cause shown’. That is not the same as saying ‘if the court shall think fit’. There is a burden on the applicant to show why the liquidator should be removed.’ However, the words of the statute are very wide, and it would be dangerous and wrong for a court to seek to limit or define the kind of cause required; and it may be appropriate to remove a liquidator even though nothing can be said against him, either personally or in his conduct of the particular liquidation.
Millett J
[1987] BCLC 409
England and Wales
Cited – Re Adam Eyton Ltd CA 7-Jul-1887
In considering the removal of a liquidator, the court referred to the John Moore Gold case: ‘In my opinion, although of course unfitness discovered in a particular person would be a ground for removing him, yet the power of removal is not confined . .
Cited – Marseilles Extension Rly and Land Co 1867
The court considered the circumstances when a liquidator could be removed. The words ‘due cause’ did not require anything amounting to misconduct or personal unfitness. It was sufficient if it could be shown that it was on the whole desirable that a . .
Cited – Re Sir John Moore Gold Mining Co CA 1879
The court considered an appeal against an order removing the liquidator: ‘I should say that, as a general rule, [the words ‘on cause shown’] point to some unfitness of the person – it may be from personal character, or from his connection with other . .
Followed – AMP Enterprises Ltd v Hoffman and Another ChD 25-Jul-2002
A creditor sought an order to replace the company liquidator.
Held: Such orders were discretionary, but courts should not grant them too readily. It was for the applicant to show good reason for the order. The circumstances would vary widely, . .
Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Approved – In Re Edennote Ltd; Tottenham Hotspur plc v Ryman CA 21-May-1996
The company was in liquidation. Terence Venables, who had owned the shares, had taken an assignment of a cause of action against the football club. The court had set aside that assignment, and removed the liquidator. Venables now appealed saying . .
Applied – In Re Edennote Ltd; Tottenham Hotspur plc v Ryman ChD 1-Nov-1994
The company Edennote had been wound up on insolvency. It had a possible claim for fees against Tottenham, owned by Mr Sugare. The shareholder, Terry Venables, took an assignment of that action. An application was made to set aside the assignment and . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 May 2022; Ref: scu.182075
The defendant appealed an order requiring it to give security for costs under s726.
Held: There were clear reasons for doubting the amounts sought by the plaintiffs, but some sum was properly required, and a lower sum was substituted.
Lord Justice Leggatt, Lord Justice Morritt, Lord Justice Brooke
[1997] EWCA Civ 2141
England and Wales
Updated: 29 May 2022; Ref: scu.142538
[2002] EWCA Civ 204
Land Compensation Act 1973 459
England and Wales
Updated: 29 May 2022; Ref: scu.216782
Doctors’ partnership dispute
[2002] EWCA Civ 28
England and Wales
Updated: 29 May 2022; Ref: scu.216725
Appeal against banning order.
[2002] EWCA Civ 286
Company Directors Disqualification Act 1986
England and Wales
Updated: 29 May 2022; Ref: scu.216730
A company director can be convicted of theft from his company even though the act might technically be the act of the company. Here company directors had paid bribes to people with whom the company intended to do business. The bribes were paid out of company funds and with the intention of benefiting the company. Nevertheless, appropriation under the Act, does not need to be without the consent of the owner. The dishonesty element must be directed toward the owner of the property.
Times 12-Jul-2001, [2001] EWHC Admin 456
Updated: 29 May 2022; Ref: scu.140336
The principal shareholder and managing director of a company which was the sole tenant of a building was competent to object to a planning enforcement notice. The corporate veil was not to be set aside except in special circumstances, and in this case the company was no mere sham or front. However, the managing director could be said in law to be occupying part of the building as licensee, and so achieved a sufficient standing through that path.
Mr Robin Purchas Q.C
Times 13-Oct-2000, [2000] EWHC Admin 386, [2001] 1 PLR 38
Town and Country Planning Act 1990 174
See also – Buckinghamshire County Council v North West Estates plc and others ChD 31-May-2002
The planning authority sought injunctions for enforcement notices. The landowner argued that human rights law required the court when looking at such a request to look at the entire planning history.
Held: Although the court could look to a . .
See also – Buckinghamshire County Council v North West Estates plc and others ChD 31-May-2002
The planning authority sought injunctions for enforcement notices. The landowner argued that human rights law required the court when looking at such a request to look at the entire planning history.
Held: Although the court could look to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 May 2022; Ref: scu.140201
The company incurred costs on the issue of shares issued and sold in part within the EU and in part outside. It sought to reclaim the VAT on the payments made. The issue of shares was a supply of services even though there was no transfer or depletion of resources. The six accepted elements for a supply need not be extended to include such a requirement. The input tax insofar as it related to the sale of shares to persons within the EU was not recoverable.
Lightman J
Gazette 24-Feb-2000, Times 07-Mar-2000, [2000] EWHC Admin 287
England and Wales
Updated: 29 May 2022; Ref: scu.140101
[1999] EWHC Admin 442
Updated: 28 May 2022; Ref: scu.139706
A court cannot answer questions in abstract form. An accountancy practice seeking an answer to how it would be taxed if incorporated as a limited partnership off-shore could not rely upon the court to answer a hypothetical question.
Dyson J
Times 18-May-1999, [1999] EWHC Admin 358, [1999] STC 531
Cited – Claimants under the Loss Relief Group Litigation Order v Inland Revenue Commissioners ChD 3-Mar-2004
Various claimants sought to have issues of law on group relief and other issues settled under a group litigation order.
Held: The High Court had no jurisdiction to hear such matters until they had first been raised in ordinary tax appeals . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 May 2022; Ref: scu.139622
Mitting J set out the background to Royal Charters: ‘This is, I believe, the first time that the grant or refusal of a Royal Charter has been the subject of litigation. I propose, therefore, to begin by a brief analysis of the history and nature of Royal Charters and the process by which they are granted. A Royal Charter is granted in the exercise of prerogative powers -‘the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the crown’: Dicey, The Law of the Constitution page 424. It has the essential qualities of an executive, rather than legislative act, and is ‘best not described as legislation’: Craies on Legislation 10th edition paragraph 3.7.8. Its original purpose was to grant corporate personality to bodies of persons conducting activities for public or private benefit. The first Royal Charter in the first category was granted to the University of Cambridge in 1231 and the second to the Sadlers Company in 1272. Numerous grants have been made to educational institutions and livery companies ever since. The first grant of a Royal Charter to a group of persons carrying on a profession was to the Royal College of Physicians of London in 1518. At the turn of the 17th and 18th centuries, Royal Charters were granted to institutions which played a major part in the economic life of the country, notably the Bank of England in 1694 and the South Sea Company in 1711. The puncturing of the South Sea bubble in 1720 caused Parliament to prohibit the formation of joint stock companies except by Royal Charter in the Bubble Act 1720. Thereafter until the early 19th century, the grant of Royal Charters in the economic field was limited to a small number of banks and insurance companies. Between the enactment of the Chartered Companies Act 1837 and the Limited Liability Act 1955, the grant of a Royal Charter was the principle means by which economic activity could be carried on by an incorporated body without putting at risk the entire assets of those who’ve subscribed capital to it. In consequence, a large number of trading and mining companies were incorporated by Royal Charter between those dates. Few were afterwards. From then on, the great majority of bodies incorporated by Royal charter have been educational, charitable or professional. Lord Diplock was not quite right when he identified this function of the Privy Council as ‘the grant of corporate personality to deserving bodies of persons’ in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 410B, because almost all of the grantees have already been incorporated under legislative provisions. Grants are still made to un-incorporated groups of persons – for example livery companies and, in 2012, Marylebone Cricket Club – but current practice is accurately stated by the Privy Council on its website: ‘new grants of Royal Charter are these days reserved from imminent professional bodies or charities which have a solid record of achievement and are financially sound.
An organisation seeking the grant of a Royal Charter must petition Her Majesty the Queen in Counsel. On its website, the Privy Council office invites informal approaches before a petition is lodged, to afford that office the opportunity of giving advice about the chances of success. Petitioners are advised to take soundings amongst other bodies which may have an interest in the outcome. Once a formal petition has been lodged, it is advertised in the London Gazette. Any objector is entitled within six weeks to lodge a counter-petition. The petition is considered by a sub-committee of the Privy Council, comprising ministers of the departments most closely connected with the activities of the petitioner. Unanimity amongst the members of the committee is required before a recommendation for the grant of a Royal Charter will be made.
A petitioner is required to submit a draft of its charter and by-laws. Both must be approved by the Attorney General. Once a Royal Charter is granted, the Charter and by-laws cannot be amended without the consent of the Privy Council.’
Mitting J
[2014] EWHC 2438 (Admin)
England and Wales
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 May 2022; Ref: scu.534428
The applicant had been proceeded against after the collapse of companies in which he was involved with very substantial debts. The proceedings had begun in July 1990, and lasted nearly nine years.
Held: Where proceedings could be expected to have an adverse effect on the applicant’s reputation and ability to practice his profession, special diligence was required to act with expedition. The applicant had pursued appeals himself which had failed, and criticism of him for this was incorrect, the solution being to exclude an appropriate period from the time calculation. There had been a violation of the applicant’s article 6 rights.
74976/01, Times 09-Aug-2004, [2004] ECHR 364
European Convention on Human Rights 6.1
Human Rights
Cited – Davies v The United Kingdom ECHR 16-Jul-2002
The applicant had been subject to applications for his disqualification from acting as a company director. The Secretary of State waited until the last day before issuing proceedings, and the proceedings were then delayed another three years pending . .
See Also – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
See Also – Secretary of State for Trade and Industry v Eastaway; Re Blackspur Group (No 3), Secretary of State for Trade and Industry v Davies and Others (No 2) CA 13-Sep-2001
. .
See Also – Secretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .
See Also – In Re Blackspur Group Plc; Secretary of State v Eastaway ChD 21-Jun-2001
The director was amongst a group against whom a director disqualification order was sought. He offered an undertaking, but the Secretary of State refused to accept this unless it was accompanied by a statement as to the factual basis on which it was . .
At ECHR – Eastaway v Secretary of State for Trade and Industry and similar ChD 2-Mar-2006
. .
At ECHR – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 May 2022; Ref: scu.199500
The claimants sought judicial review of decisions made about the future conduct of disqualification proceedings.
[1997] EWHC Admin 1166
Company Directors Disqualification Act 1986
See Also – Regina v Secretary of State for Trade and Industry ex parte David Austin Mccormick Admn 19-Dec-1997
. .
See Also – Regina v Secretary of State for Trade and Industry ex parte David Austin Mccormick Admn 19-Dec-1997
. .
Lists of cited by and citing cases may be incomplete.
Updated: 26 May 2022; Ref: scu.138111
[1997] EWHC Admin 1174
See Also – Regina v Secretary of State for Trade and Industry ex parte David Austin Mccormick Admn 18-Dec-1997
The claimants sought judicial review of decisions made about the future conduct of disqualification proceedings. . .
See Also – Regina v Secretary of State for Trade and Industry ex parte David Austin Mccormick Admn 18-Dec-1997
The claimants sought judicial review of decisions made about the future conduct of disqualification proceedings. . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 May 2022; Ref: scu.138119
[2018] EWHC 3098 (Ch)
England and Wales
Updated: 26 May 2022; Ref: scu.631379
Lord Justice Rimer
[2014] EWCA Civ 679
England and Wales
Updated: 26 May 2022; Ref: scu.525644
[2004] EWCA Civ 1734
England and Wales
Updated: 26 May 2022; Ref: scu.220663
Lord Carloway
[2003] ScotCS 314
Scotland
See Also – In Petition of Arthur Simmers and others for an Order Under Sec 461 of the Companies Act 1985 In Respect of Scotpigs Limited SCS 24-Apr-2003
. .
See Also – Simmers and Others, Re Petition for an Order ScS 4-Apr-2003
. .
See Also – Arthur William Simmers v James Grigor Innes OHCS 11-Jul-2005
. .
See Also – Simmers v Innes OHCS 2-Feb-2007
The parties disputed whether an option to purchase land had been validly exercised after a dispute as to the means of valuing it.
Held: The option had been validly exercised. . .
See Also – Simmers v Innes HL 16-Apr-2008
The House was asked whether an option to purchase certain land had been validly exercised. The farm assets had been transferred into a company in order to generate cash. Mr Simmers was apparently gven a right for five years to purchase the business. . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 May 2022; Ref: scu.190751
[1997] EWHC Admin 426
Updated: 26 May 2022; Ref: scu.137371
Payments made by FHSA’s to doctors’ co-operatives were lawful even though they were not being made to a company limited by guarantee.
Times 15-Nov-1994
England and Wales
Updated: 26 May 2022; Ref: scu.87726
Application to set aside leave to move for judicial review and a stay of criminal proceedings.
[1997] EWHC Admin 369
Updated: 25 May 2022; Ref: scu.137314
The Court gave guidance on what was a proper purpose within section 117 of the 2006 Act for making a request to inspect the register of company members.
Held: A member seeking a copy of the share register in order to communicate with fellow members, should show that the communication if it was to be for a proper purpose, have some connection with the other members’ interests in their capacity as members of the company.
Arden, Briggs, Christopher Clarke LJJ
[2014] EWCA Civ 604, [2014] 1 WLR 4046, [2015] 1 All ER 37, [2014] BCC 393, [2014] WLR(D) 206
England and Wales
Updated: 25 May 2022; Ref: scu.525617
Unfair prejudice petition
[2014] EWCA Civ 191
England and Wales
Updated: 25 May 2022; Ref: scu.521623
[2000] EWCA Civ 28
England and Wales
Updated: 23 May 2022; Ref: scu.135982
The claimant alleged that it had entered into a sub-contract relying upon misrepresentations made by the defendant, SCL that it was the main contractor, and that it was still trading. The defendant company operated through associated companies for which it was an agent, but itself was treated as dormant, even though it still put its name to invitations to tender. The claimants had undertaken credit checks before the contract the results of which were adverse.
Held: To be actionable a representation needed to be as to an existing or past fact. The filed accounts were no promise as to the future activity of the company. The claimant could have stopped work at any time, and had not continued after being misled. The company would not have acted differently if the actual position had been made clear. Claim dismissed.
His Honour Judge Humphrey Lloyd QC
1994 ORB 826, [1999] EWHC Technology 183
Misrepresentation Act 1967 2(2)
See Also – Floods of Queensferry Limited v Shand Construction Limited, Morrison Shand Limited, Morrison Construction Limited QBD 13-Feb-1997
. .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.135998
A former partner in a firm could not set off sums due to him from the former partnership, against sums expended by remaining partners in acting to protect partnership property, and claimed from him. There was insufficient mutuality to enforce the set off. The one claim was by partners but as trustees, and the other was a claim directly under the partnership.
Times 15-Mar-2001, Gazette 26-Apr-2001, [2001] EWCA Civ 182
Insolvency Rules 1986 (SI 1986 No 1925) 4.218(1) 4.220(1)
England and Wales
Updated: 23 May 2022; Ref: scu.135567
Although the director of the companies being wound up was not himself a party to the winding up process, it was clear that he had exercised such entire control of them as to have treated them as an extension of himself. He had arranged for the proceedings to be resisted disregarding the interests of creditors, and for the purpose only of protecting his own personal reputation. In such circumstances it was proper to order him to pay the costs of the proceedings himself.
Times 23-Feb-2001, Gazette 01-Mar-2001, [2001] EWCA Civ 1222
England and Wales
Updated: 23 May 2022; Ref: scu.135604
[2001] EWCA Civ 278, [2001] 2 All ER (Comm) 563
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.135611
The court considered the liability of directors for an unlawfully paid dividend.
Held: Robert Walker LJ: ‘The prospect of the former directors being able to obtain contribution from innocent recipients of unlawful dividends was debated (somewhat inconclusively) in the course of the appeal hearing. The statutory remedy in s.277 of the Act is not in point (since it is available only to the company, and only against a shareholder with actual or constructive knowledge of the unlawfulness of the dividend).’
Robert Walker LJ, Sir Andrew Morritt V-C and Sedley LJ
[2001] EWCA Civ 712, [2002] 2 BCLC 531, [2001] 2 HCLC 53
England and Wales
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – It’s A Wrap (UK) Ltd v Gula and Another ChD 16-Sep-2005
The defendant company directors were accused of having paid dividends to themselves when the company was in fact making a loss.
Held: A claim might lie, but the pleadings did not phrase it adequately, and an amendment would be improper. Though . .
Cited – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.135404
[2001] EWCA Civ 660, [2001] 3 All ER 862
England and Wales
Cited – Whitbread (Hotels) Ltd and Another v Walkmore (95) Ltd OHCS 4-Jan-2002
Where application was made to restore a company to the register, to face court action, the court should look at the issues of limitation, and at how any delays had arisen.
Held: The court should be aware of the potential prejudice created by . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.135461
Unfair prejudice petition
Briggs Reg
[2017] EWHC 3129 (Ch)
England and Wales
Updated: 23 May 2022; Ref: scu.601825
Deeny J
[2015] NICh 14
Northern Ireland
Updated: 23 May 2022; Ref: scu.560421
A director’s disqualification order was sought. The order was sought on the basis of allegations of conduct as liquidator of several companies.
Newey J
[2012] EWHC 1899 (Ch)
Company Directors Disqualification Act 1986
England and Wales
Cited – Deloitte and Touche Ag v Johnson and Another PC 10-Jun-1999
(Cayman Islands) The Board was asked whether a debtor or alleged debtor of a company in liquidation can apply for the removal of a liquidator, in whom the creditors and contributors of the company appear to have confidence, on the ground that he is . .
Cited – In Re Adbury Park Estates Ltd ChD 2003
A shareholder applied under section 4 of the 1986 Act for disqualification orders against the liquidators of a hopelessly insolvent company.
Held: The application was refused on two grounds: first, that the applicant had no standing to bring . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.462437
Directors of a public companY are trustees for the shareholders, and their private interests must yield to their public duty whenever they are conflicting.
Directors permitted a class of dissentient shareholders in an embarrassed company to tranefer their shares to the company, under a power in the deed, upon payment of a sum of money, which it was arranged should be paid to one of the directors in discharge of a debt due from the Company. Held, that the transaction was void, and, on winding up the company, that the dissentients still remained shareholders.
[1854] EngR 356, (1854) 18 Beav 339, (1854) 52 ER 134
England and Wales
Updated: 22 May 2022; Ref: scu.293213
[1896] UKHL 1, [1897] AC 22
England and Wales
Updated: 21 May 2022; Ref: scu.634026
Disputes following break up of two partnerships.
Falk J
[2018] EWHC 3061 (Ch)
England and Wales
Updated: 21 May 2022; Ref: scu.631367
Consideration of the effect of the arcane and complex doctrines of escheat and bona vacantia on the property of a company which is dissolved and then subsequently restored to the company register.
[2018] NICh 18
England and Wales
Updated: 21 May 2022; Ref: scu.631354
The court was asked as to the duties of inspectors appointed under the 1948 Act. Sachs LJ said: ‘The inspectors’ function is in essence to conduct an investigation designed to discover whether there are facts which may result in others taking action; it is no part of their function to take a decision as to whether action be taken and a fortiori it is not for them finally to determine such issues as may emerge if some action eventuates.’
Lord Denning MR set out the following statement of principle: ‘The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.’
and ‘They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings . . When they do make their report, the Board are bound to send a copy of it to the company; and the board may, in their discretion, publish it, if they think fit, to the public at large.
Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly . . before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him.’
Lord Denning MR
[1971] Ch 388, [1970] 3 WLR 792, [1970] 3 All ER 535
England and Wales
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Financial Conduct Authority v Macris SC 22-Mar-2017
The claimant had complained that the appellant Authority had made public a penalty imposed on a former employer but implicating him without he being first given an opportunity to make representations. . .
Cited – Lewin, Regina (on The Application of) v The Financial Reporting Council Ltd and Others Admn 19-Mar-2018
. .
Cited – UK Innovative TI Ltd and Another v The Financial Conduct Authority UTTC 25-Apr-2018
FINANCIAL SERVICES – procedure – applicants contending they have third party rights in relation to a Supervisory Notice – whether Tribunal has jurisdiction in relation to the subject matter of the references-no-references struck out – Rule 8 (2) (a) . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.622608
The respondents were the liquidators of a company which the appellant bank climbed old substantial monies. The insolvent company had several subsidiaries and sub-subsidiaries, holding further assets. The respondent first sought an order requiring the production of certain documents to assist with the liquidation. Those orders were discharged after compromise agreements. The respondent then sought yet further disclosures, and the court made an order in very wide terms which would permit disclosure of any documents thought reasonably beneficial to the winding up, and those subsidiary or sub-subsidiary companies might in turn also disclose them if required to do so in other legal proceedings. The appellant now said that the order was too wide.
Held: The appeal failed. The wide power of disclosure was necessary to avoid the court becoming bogged down in the minutiae of constant squabbles over the relevance of particular documents.
[1989] BCLC 59, Times 30-May-1988, 1988 PCC 443
England and Wales
See Also – In Re Esal (Commodities) Ltd CA 1989
. .
See Also – Re Esal (Commodities) Ltd (No 2) ChD 1990
The company was wound up massively insolvent. The liquidators obtained orders for the private examination of an officer of the bank, who had undertaken an investigation into the bank’s relationship with the company before it’s liquidation. The bank . .
See Also – Re Esal (Commodities) Ltd (No 2) CA 2-Jan-1990
the principal purpose of the powers to compel third parties to provide material to office-holders under sections 235, 236 and 366 is to assist with the beneficial winding up of the company or bankruptcy of the individual in question . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.622389
The proceeds of the theft of gold bullion from a warehouse owned by the plaintiffs were laundered through the bank account of a company called Scadlynn Ltd with Barclays Bank. The directors and sole shareholders of Scadlynn were signatories of the account and drew cheques on it for cash totalling nearly andpound;8m over four months. The plaintiffs sought to enforce rights which Scadlynn was said to possess against the bank in consequence of the payments out of its account. The court was asked whether the pleading should be permitted, raising in turn the question, among others, whether it was open to Scadlynn to sue the bank in respect of withdrawals made or authorised by the company’s sole directors and shareholders.
Held: there was no reason why Scadlynn, which was being put into compulsory liquidation, should be prevented from enforcing such a claim for the benefit of the creditors who would look to the assets for the satisfaction of their debts.
Nicholls LJ described the existence of the directors’ fiduciary duties to the company as a means by which the law sought to protect the company’s creditors.
Mustill LJ rightly described Scadlyn as being an intended victim of arrangements intended dishonestly to deprive it of a large part of its assets and Nicholls LJ agreed with him.
Mustill and Nicholls LJJ and Sir Roualeyn Cumming-Bruce
[1991] 1 Bank LR 68
England and Wales
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.566002
Possible claims against a foreign company for misfeasance, or wrongful or fraudulent trading might be sufficient to justify proceedings here to wind up a foreign registered company. A second requirement is that some person within this jurisdiction would be likely to achieve a substantial benefit from such an action, and third was that some person responsible for distribution of the company’s assets was somebody over whom a UK court could exercise a jurisdiction.
Times 15-Mar-2000, [2000] EWCA Civ 36, [2001] 2 BCLC 116
England and Wales
See Also – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See Also – Stocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
See Also – Stocznia Gdanska S A v Latvian Shipping Co and Others HL 22-Jan-1998
The parties had contracted to design, build, complete and deliver ships. The contract was rescinded after a part performance.
Held: It remained appropriate for payment to be made for the work already done in the design and construction stages: . .
See Also – Stocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
See Also – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
See Also – Stocznia Gdanska Sa v Latvian Shipping Company and others CA 23-Jul-2002
Application for leave to appeal to the House of Lords refused. . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.89567
[2013] EWHC 3800 (Ch)
England and Wales
Updated: 20 May 2022; Ref: scu.518582
The venue selected for a meeting of the members of a company was too small to accommodate all the members who attended, and so the chairman adjourned the meeting to an alternative venue.
Held: The decision by the chairman was set aside on the ground that, although acting good faith, he had failed to take into account relevant factors in the exercise of a discretion as chairman. The initial assembly of members was a meeting for the purposes of the Companies Act and the company’s articles of association, even though no business could be transacted because the members could not be adequately accommodated. The chairman had adjourned the meeting to a larger venue later in the day, without the consent or direction of those present. He had a residual common law power of adjournment, arising out of his duty to regulate proceedings so as to enable those attending to be heard and to vote. That power was not removed or restricted by the provision of the company’s articles, in circumstances where it was not possible to discover whether the meeting would agree to an adjournment and an urgent decision was needed.
Browne-Wilkinson V-C, Mustill, Woolf LJJ
[1990] 1 Ch 170
England and Wales
Cited – Pitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.402001
The directors of a railway company, with the concurrence of a majority of the shareholders, on finding the original undertaking impracticable, proceeded to construct a small portion only of the works. On an application by an individual shareholder on behalf of himself and the other shareholders for an injunction to restrain this proceeding, the Court refused to interfere on the ground of the acquiescence of the Plaintiff, and also that the other shareholders had for eighteeri months previously to filing the bill known, or had had the means of knowiiig, the Acts complained of.
[1850] EngR 591, (1850) 2 Mac and G 146, (1850) 42 ER 57
England and Wales
Updated: 20 May 2022; Ref: scu.297938
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated.
Times 25-Jun-1990
England and Wales
See Also – Dubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .
See Also – Dubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.241345
The parties had competed in bidding to acquire a public company. The plaintiff alleged that the defendant had used a fraudulent misrepresentation to the Secretary of State to achieve an advantage.
Held: To establish the tort of conspiracy to injure, it was sufficient that the conspirators intentionally caused injury to the plaintiff, and that they had used unlawful means to do so. It was not a defence to show that their predominant purpose was to protect their own interests.
[1990] AC 479, Guardian 28-Jun-1991, [1991] 3 All ER 303
England and Wales
First Instance – Lonhro plc v Fayed 19-Jul-1988
The plaintiff and defendant competed in bidding for a public company. The plaintiff having been restrained by the Secretary of State, alleged that the defendant had used a fraudulent misrepresentation to achieve this.
Held: It was not a tort . .
Appeal from – Lonhro plc v Fayed CA 1990
The parties competed against each other in bidding for a public company. The plaintiff’s bid was referred to the Monopolies Commission, and they undertook to purchase no further shares. The defendant’s bid was not so referred, and the plaintiff . .
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.223003
Europa An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation. Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission’ s investigation, and the limits of such rights are reached where they begin to interfere with those companies’ rights to a fair hearing. The obligation of professional secrecy laid down in article 214 of the treaty and article 20*(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets. The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty. Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business. That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company. Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1) of the treaty are met, its review of the commission’ s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.
Joined Cases 142 and 156/84, C-142/84
European
Updated: 19 May 2022; Ref: scu.133897
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of property belonging to another had taken place.
Held: An appropriation of goods sufficient to found a charge of theft may occurr when the consent to the act is obtained by a deception, and which deception results in the voidable transfer of ownership. Goods obtained by a deception might also be subject to a theft charge, because of the assumption of the rights of an owner.
Lord Browne-Wilkinson said: ‘ . . it would offend both common sense and justice to hold that the very control which enables such people to extract the company’s assets constitutes a defence to a charge of theft from the company. The question in each case must be whether the extraction of the property from the company was dishonest, not whether the alleged thief has consented to his own wrongdoing.’
Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Lowry (dissenting), Lord Browne-Wilkinson and Lord Slynn of Hadley
Gazette 03-Mar-1993, Times 08-Dec-1992, [1993] AC 442, [1992] UKHL 4, [1993] 1 All ER 1
Approved – Lawrence v Metropolitan Police Commissioner HL 30-Jun-1971
The defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of andpound;6 for a journey for which the correct lawful fare was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention . .
Appeal from – Regina v Gomez CACD 1991
The defendant was an assistant shop manager. He accepted two cheques which he knew to be stolen from a customer in exchange for goods, by persuading the manager that the cheques were valid. He was accused of theft of the goods. He answered that a . .
Approved – Attorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Explained and Limited – Regina v Morris (David); Anderton v Burnside HL 2-Jan-1983
The defendants had been accused of theft. One switched labels on a joint of pork in a supermarket, and the other presented the meat with the now cheaper label for purchase.
Held: The appeals were dismissed. There can be no conviction for theft . .
Cited – Dobson v General Accident Fire and Life Assurance Corporation Plc CA 1989
The plaintiff sought to claim under his household insurance. He sold some jewelry, accepting a building society cheque which turned out later to be stolen. He argued that his loss was ‘loss or damage caused by theft’ The insurer argued that there . .
Cited – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – Phillips v Brooks Ltd 1919
A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .
Cited – Regina v Desmond HL 1965
The House analysed the authorities on the law of larceny and robbery, and declared its current state. While in earlier times robbery may have been limited to where there was actual violence, it became sufficient that there was ‘a putting in fear of . .
Wrongly decided – Regina v Fritschy CACD 1985
The defendant was instructed by the owner to collect a quantity of krugerrands in London and deliver them to a safe deposit in Switzerland. The defendant, having once collected the coins, took them to Switzerland and there made away with them. The . .
Cited – Regina v Skipp CACD 1975
The defendant, presented himself as a contractor, and was instructed to collect and deliver consignments of goods from three different places. Having collected the goods he made off with them. He faced one count of theft in respect of the three . .
Cited – Regina v Kassim HL 19-Jul-1991
The trial judge had held that a telex message requesting payment of andpound;960,000 had been ‘executed’ because it had been put into effect.
Held: A valuable security was not executed when the drawer’s bank acted upon the cheque, or request . .
Cited – Regina v Philippou CA 1989
The defendants were sole directors and shareholders of their company. They appealed a conviction of theft from the company.
Held: The convictions stood. ‘Appropriates’ is to be given its ordinary English meaning, namely, ‘takes as one’s own or . .
Cited – Regina v McHugh CACD 1988
In cases alleging corporate fraud it is necessary to look very carefully at the nature and limits of the authority before considering whether the questioned transaction is in truth a transaction authorised by the company. . .
Disapproved – Regina v Roffel 19-Dec-1984
(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – Regina v Shuck CACD 1992
The defendant was a company officer. He gave instructions to an innocent third party which resulted in the dishonest diversion of substantial sums of the company’s money. He appealed the judge’s interpretation of the word ‘appropriation.’
Cited – Whitehorn Brothers v Davison CA 1911
It is for the defrauded owner seeking to recover his goods to prove that the purchaser had actual or constructive knowledge of the fraud. The passing of a good title to an innocent purchaser applied when the owner had been induced by false pretences . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
Cited – Wimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .
Confirmed – Regina v Hinks HL 27-Oct-2000
A woman befriending an older man of limited intelligence accepted daily cash payments from his building society over eight months, claiming them to be gifts. She now appealed against her conviction for theft.
Held: (Lord Hutton dissenting) For . .
Cited – Wheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
Cited – 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 . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.86704
It was possible for a body to apply for legal aid but only if it was genuinely acting in a fiduciary capacity as trustee, not mere contractual representative.
Times 07-Nov-1997, [1997] EWHC Admin 883
Legal Aid Act 1974 2(10), Legal Aid Act 1988 2(10)
Appeal from – Regina v Chester and North Wales Legal Aid Area Office (No 12) ex parte Floods of Queensferry Limited CA 18-Dec-1997
A company was not entitled to legal aid unless it was clearly acting in a fiduciary capacity; that the assignment of an action is invalid is insufficient to warrant a grant. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.86343
From January 2000, applications in company matters need not be heard only by a companies judge, and matters which had previously been listed on Mondays for this purpose need no longer be so listed. Urgent applications would also be dealt with by the applications judge.
Times 19-Jan-2000
England and Wales
Updated: 19 May 2022; Ref: scu.84999
(New Zealand) Trustees release of company also released directors as joint tortfeasors.
Gazette 05-Jan-1995, [1994] UKPC 44
Updated: 19 May 2022; Ref: scu.84266
Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES scheme.
Lord Templeman said: ‘The Act of 1985 preserves the distinction in English law between an enforceable contract for the issue of shares (which contract is constituted by an allotment) and the issue of shares which is completed by registration. Allotment confers a right to be registered. Registration confers title. Without registration, an applicant is not the holder of a share or a member of the company: the share has not been issued to him . . No person can be a shareholder until he is registered. A person who is not a shareholder by registration cannot claim that the share has been issued to him . .’ and
‘A person who has been allotted shares is in as good a position in equity as a person to whom shares have been issued but that does not mean that there is no distinction between allotment and issue’ and
‘. . The certificate declares to all the world that the person who is named in it is the registered holder of certain shares in the company and that the shares are paid up to the extent therein mentioned . . ‘
HL Income Tax – Reliefs – Business expansion scheme – Relief precluded for a scheme involving loan facilities where shares issued on or after 16 March 1993 – Applications for shares processed, cheques presented for payment, allotments made, and applicants notified by that date, but registration in companies registers of members taking place later – Whether shares issued before 16 March – Income and Corporation Taxes Act 1988, ss 289, 299A, 311(1) – Finance Act 1988, s 50.
Lord Templeman, Lord Lloyd of Berwick
Gazette 07-Sep-1994, Times 24-Jun-1994, Ind Summary 25-Jul-1994, [1994] 3 All ER 1, [1995] 1 AC 119, [1994] UKHL TC – 67 – 1
Income and Corporation Taxes Act 1988 289 299A, Companies Act 1985 738
England and Wales
Appeal from – National Westminster Bank Plc and Another v Inland Revenue Commissioners CA 10-Jan-1994
Shares in Business Expansion Scheme were not to be treated as issued until they were entered in the company’s share register. The scheme was ineffective being a scheme to avoid Income Tax by financial manipulation. . .
At First Instance – National Westminster Bank Plc and Another and Barclays Bank Plc and Another v Inland Revenue Commissioners ChD 6-Aug-1993
A business expansion tax plan was valid if it was issued before the Income and Corporation Taxes Act. Shares were issued on the sending of the allotment letter, not when the shares came to be registered in the company’s books. . .
Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Cited – Eckerle and Others v Wickeder Westfalenstahl Gmbh and Another ChD 23-Jan-2013
By acting together, two shareholders had first refused the proposed dividend, and replaced the board. They then acquired fiurther shares and achieved a majority of more than 75%, sufficient to pass a special resolution, and proposed the cancellation . .
Cited – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.84207
A partnership between a group intending to open a restaurant began when the parties joined together the find the premises, and fit it out. The partnership had come into existence even though they had not commenced trading by opening the restaurant. Two partners discovered that the land had been conveyed into the sole name of the third, and the relationships broke down.
Held: Whether a partnership had come into existence, and the property held on trust for the partnership was a question of fact. The question to be answered was whether they had actually embarked upon the venture which they had agreed. ‘The various provisions of the Act which contain the terms to be implied into a partnership unless otherwise agreed are not statutory presumptions but default provisions. Very slight evidence is needed to exclude them.’ Appeal allowed.
Lord Millett said: ‘Whether parties who propose entering into a business venture in partnership together have actually done so is a question of fact into which your Lordships would not normally enter. But the majority of the Court of Appeal did not reverse the judge’s findings of fact. They reversed his conclusions because they considered that there was a rule of law that the parties to a joint venture do not become partners until actual trading commences. They recognised the distinction between a contemplated partnership or an agreement to become partners and the partnership itself. They considered that it was necessary first to identify the business that it was intended or agreed should be conducted by the partnership, and then decide whether that business was being carried on by the partners at the material time. They identified the business of the partnership as the carrying on of a restaurant business from the premises in Newbury, and posed the question, at p 486H: ‘were the four parties . . carrying on a restaurant business at [the premises] prior to 25 January 1994?’. So expressed, the question could only be answered in one way. The restaurant was not open for business. There was nothing for the first defendant to manage, and no function for the two chefs to perform. No food had been bought or bookings taken. Everything that had been done was preparatory to the commencement of trading.
. . There is no rule of law that the parties to a joint venture do not become partners until actual trading commences. The rule is that persons who agree to carry on a business activity as a joint venture do not become partners until they actually embark on the activity in question. It is necessary to identify the venture in order to decide whether the parties have actually embarked upon it, but it is not necessary to attach any particular name to it. Any commercial activity which is capable of being carried on by an individual is capable of being carried on in partnership. Many businesses require a great deal of expenditure to be incurred before trading commences. Films, for example, are commonly (for tax reasons) produced by limited partnerships. The making of a film is a business activity, at least if it is genuinely conducted with a view of profit. But the film rights have to be bought, the script commissioned, locations found, the director, actors and cameramen engaged, and the studio hired, long before the cameras start to roll.
The work of finding, acquiring and fitting out a shop or restaurant begins long before the premises are open for business and the first customers walk through the door. Such work is undertaken with a view of profit, and may be undertaken as well by partners as by a sole trader.
The question in the present case is not whether the parties ‘had so far advanced towards the establishment of a restaurant as properly to be described as having entered upon the trade of running a restaurant’, for it does not matter how the enterprise should properly be described. The question is whether they had actually embarked upon the venture on which they had agreed. The mutual rights and obligations of the parties do not depend on whether their relationship broke up the day before or the day after they opened the restaurant, but on whether it broke up before or after they actually transacted any business of the joint venture. The question is not whether the restaurant had commenced trading, but whether the parties had done enough to be found to have commenced the joint enterprise in which they had agreed to engage. Once the judge found that the assets had been acquired, the liabilities incurred and the expenditure laid out in the course of the joint venture and with the authority of all parties, the conclusion inevitably followed.’
Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Clyde Lord Millett
Times 07-Nov-2000, Gazette 23-Nov-2000, [2000] UKHL 55, [2000] 1 WLR 2123, [2001] 1 All ER 20, [2001] 1 All ER (Comm) 282, [2000] All ER (D) 1647
Appeal from – Khan and others v Miah and others CA 3-Dec-1997
An agreement to set up a business, which went as far as including some preparatory acts, was not a partnership until there was some actual trading. Whether a partnership had come into existence was a question of fact in the particular circumstances. . .
Cited – Birmingham and District Cattle By-Products Co Ltd v Inland Revenue Commissioners 1919
A company had not completed a full trade year before the outbreak of the First World War was required to obtain tax relief. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.82757
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that shares would be bought and sold at market value. The deceased partner could have been obliged to sign the accounts, in accordance with partnership practice, using that value, and so the historic cost was to be used not the market value.
Chadwick LJ
Gazette 25-May-2000, Times 10-May-2000, [2000] EWCA Civ 149
Partnership Act 1890 27 32 33 39
England and Wales
Cited – Noble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
Appeal from – White v Minnis and Another ChD 18-Jan-1999
On the dissolution of a partnership, the valuation of assets was to be in accordance with the partnership deed but in the absence of explicit guidance property was to be valued at the date of dissolution and not at an historic value used in . .
Cited – Coventry v Barclay 1863
Partners had conducted their practice over many years in a manner inconsistent with the spirit if not the exact letter of their partnership articles. Stock was to be taken every year, and the value entered into the books to be signed off by each . .
Cited – Pilling v Pilling 1865
. .
Cited – Hunter v Dowling CA 1893
The articles of partnership between the parties required an annual account. A retiring or deceased partner was to be paid out ‘at the amount standing to his credit in the last balance sheet which shall have been signed previously to the date of such . .
Cited – Thom’s Executrix v Russel and Aitken 1983
The court was asked as to how the value of the interest of a deceased partner was to be calculated.
Held: There had been prior dealings at book value as between the partners, and the payment of the deceased partner’s share was restricted to . .
Cited – Cruikshank v Sutherland HL 1923
The executors of a deceased partner of the respondents sought relief. The assets had been taken over from an earlier partnership between the parties and had been brought into the accounts of the new partnership at the values at which they had stood . .
Cited – Noble v Noble OHCS 1965
A father took his son into a farming partnership. The agreement recited that they agreed that ‘the heritable property should be taken as of the value of eight thousand pounds, but which is burdened with a heritable security for three thousand five . .
Cited – Shaw v Shaw OHCS 1968
‘The authorities to which I was referred, including, in particular, Noble v Noble; Inner House, 28th January 1966 (unreported), and Cruickshank’s Trustees v Sutherland, satisfy me that, as a general principle, where in a partnership it is necessary . .
Cited – Clark v Watson 1982
Two dentists practised in partnership. The co-partner said that on the death of one, to his estate should be paid ‘the Capital standing to the credit of the deceased Partner in the Accounts of the Partnership’. The court was asked whether that . .
Unpersuasive – Wilson v Dunbar Bank plc OHCS 1988
An agreement to the insertion of book values in a balance sheet prepared during the continuance of the partnership did not bind the deceased partner if that balance sheet fell to be used for the purpose of the ascertainment his share in the . .
Cited – Attorney-General v Boden 1912
There was a partnership between a father and his two sons. The sons were obliged to devote their whole time to the practice, the father only so much time as he wished. On his death the sons were to pay out to his estate the value of the capital but . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.82291
Where a group of companies sought consortium group relief, but the majority of the companies within the group were based outside the European Union, the court need not apply European Union standards to the test, but could instead apply the standards appropriate to the UK, and accordingly refuse the relief.
Times 24-Nov-1999, Gazette 01-Dec-1999, [1999] 1 WLR 2035, [1999] UKHL 48, [1999] UKHL TC – 72 – 1
House of Lords, House of Lords, House of Lords, Bailii, Bailii
Income and Corporation Taxes Act 1988 258 (5) (b)
At ECJ – Imperial Chemical Industries v Colmer ECJ 16-Jul-1998
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.81594
A disclosure letter was to be construed strictly within the context of the particular contract.
Times 28-Oct-1996
Updated: 19 May 2022; Ref: scu.80262
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence of an obligation binding the conscience of the person vested with the legal ownership is the hallmark of a trust.’ and ‘in principle I can see no objection to a party to contracts involving skill and confidence or containing non-assignment provisions from becoming trustee of the benefit of being the contracting party as well as the benefit of the rights conferred. I can see no reason why the law should limit the parties’ freedom of contract to creating trusts of the fruits of such contracts received by the assignor or to creating an accounting relationship between the parties in respect of the fruits.’
Lightman J
Times 13-Apr-1998, Gazette 13-May-1998, [2000] Ch 291, [1998] 2 All ER 608
See Also – Don King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Cited – Vandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
See Also – Don King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Appeal from – Don King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
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 – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.80091
A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later claim.
Rix J
Times 04-Sep-1998, [1998] EWHC 1204 (Comm), [1999] 1 Lloyd’s Rep 415
England and Wales
Appeal from – Dubai Aluminium Company Limited v Salaam and others CA 7-Apr-2000
The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who . .
At First Instance – 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 . .
See Also – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.80148
Where an ailing company continued to trade, section 127 operated as between the company and its directors and creditors, and not so as to invalidate payments made by the company’s bank on cheques drawn before the date of presentation of the petition, and honoured before the date of the winding up order. Accordingly when an overdraft arose as a result of such payments, a person guaranteeing the company’s overdraft remained liable for the result.
The acts of a Bank in honouring cheques drawn on an insolvent company’s overdrawn account were a loan by the Bank to the company, but not a disposition of the company’s property. Section 127 ‘does not invalidate a company’s assumption of liabilities’.
Lightman J
Times 30-Nov-1999, Gazette 17-Dec-1999, [1999] EWHC Ch 191, [2000] 1 WLR 906
England and Wales
Updated: 19 May 2022; Ref: scu.79572
The fact that a director held a majority shareholding in a company was not enough of itself to say he was not an employee. It is an important factor, but the tribunal must look at all the factors. The tribunal having decided that the director’s service agreement was not a sham, it was inevitable they should conclude he was an employee, and had the right not to be unfairly dismissed.
Times 08-Mar-2001, Gazette 22-Feb-2001, [2001] EWCA Civ 184
Employment Rights Act 1996 230
England and Wales
Appeal from – Connolly v Sellers Arenascene Ltd EAT 14-Sep-1999
EAT Contract of Employment – Breach of Contract . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.79451
(New Zealand) A had given two charges over his shares to different lenders. The charges came to be both owned by the same person, who obtained judgment under the first charge, but then exercised its power of sale under the second, waiving its priority under the first. The chargor complained that the chargee should have exercised his power under the first charge which would have discharged the judgment.
Held: Owners of different mortgagees of a property can agree to alter the priority of their respective charges irrespective of the wishes of the chargor, and without needing his consent. The mortgagor had no control over which remedy was taken by the chargees.
Gazette 08-Jan-1992, [1991] 4 All ER 989, [1991] UKPC 39
Distinguished – Palmer v Hendrie 1859
. .
See Also – Cheah Theam Swee v Equiticorp Finance Group Ltd. And, Equiticorp Nominees Ltd PC 12-Jul-1989
New Zealand . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.78999
A privatised company was not same legal entity as its previous unincorporated company despite the transfer of assets to it.
Times 09-Jul-1996
Updated: 19 May 2022; Ref: scu.78956
When a partnership of solicitors was dissolved, the main asset was the work in progress comprised in substantial personal injury litigation being conducted, in effect, on a conditional fee basis. The question arose of how it could be valued. The court discarded foreign judgments which gave nil value to such assets for taxation purposes, and also the ‘realisation’ basis sometimes used in Britain. Instead the court had to assess the proportion of work which might prove successful, and to establish what proportion of the work had already been concluded, making allowance for the need for simplicity of calculation, the necessary inexactitude, and giving the benefit of any doubt to those who might complete the work.
Times 24-Oct-2000
Updated: 18 May 2022; Ref: scu.78685
The need to reach one conclusion justified service of proceedings overseas on a firm’s partners, where there was a genuine issue to be decided
Times 13-Aug-1996, Gazette 23-Oct-1996, [1996] EWCA Civ 1025
England and Wales
Appeal from – Barings Plc and Another v Coopers and Lybrand (A Firm) and Others CA 6-Dec-1996
Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue. . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.78229
A conviction for manslaughter by gross negligence did not require proof of a defendant’s state of mind. Nevertheless such evidence might well be useful in other ways. A body corporate could be guilty of manslaughter by gross negligence, but only if at least one identified individual was shown to be guilty of the same crime. Corporate manslaughter did not require evidence of the state of mind of the corporation, but somebody no doubt within the corporation must also be identified as responsible in law.
Rose LJ
Times 29-Feb-2000, Gazette 02-Mar-2000, [2000] QB 796
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.78005
Because articles of association are business documents, they should be construed in a manner tending to business efficacy and, if necessary, terms will be implied in the articles in order to make them work
[1986] BCLC 149
Updated: 18 May 2022; Ref: scu.566716
The defendants had given promissory notes to a friendly society, which came to be dissolved. An action was brought for recovery of the debts, but without the necessary permission first.
Held: The failure was not one to be taken advantage of in the plea to the further maintenane of the action, but only, and if at all, by making application to the court having in hand the winding up of the company.
(1866) LR 1CP 694
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.567256
[2002] 2 BCLC 252
Updated: 18 May 2022; Ref: scu.566715
Baron Parke said: ‘I have always understood, until the doubt was raised in Barton v. Williams, that one joint-tenant or tenant in common of a chattel could not be guilty of a conversion by a sale of that chattel, unless it were sold in such a manner as to deprive his partner of his interest in it. A sale in market overt would have that effect.’
Baron Parke
1836 Meeson and Welsby’s Reports 682
Cited – Regina v Bonner and Others CACD 24-Feb-1970
The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.566424
A company can be guilty of conspiracy, in this case to defraud. Both the managing director and, through him, the haulage company were convicted of conspiracy to defraud. His acts ‘were the acts of the company and the fraud of that person was the fraud of the company’.
‘Where the only punishment which the court can impose is death, for this purpose the basis of this exception is being that the court will not stultify itself by embarking on a trial in which, if the verdict of guilt is returned, no effective order by way of sentence can be made.’
[1944] KB 551, [1944] 1 All ER 691
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.565998
The company had been required to make a return for revenue purposes (purchase tax) and the statute made it an offence to make a false return with intent to deceive. The company was charged with such, but responded that the action was of employees .
Held: The mens rea of the servant authorised to discharge the duty to make the return should be attributed to the company. The Court focussed on the question whether the officers were acting within the scope of their authority and concluded that they were, notwithstanding that the purpose of the dishonest purchase tax returns was to conceal the defendant’s own theft from the company.
Viscount Caldecott LCJ described the officers as important officials of the company
Humphreys J said that it was difficult to imagine two persons whose acts would ‘more effectively bind the company’ and who could be said to be more obviously agents of the company
Humphreys J, Viscount Caldecott LCJ
[1944] 2 All ER 515
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.565996
Held: Where a company was under an undisputed obligation to pay a specific sum and failed to do so, it could be inferred that it was unable to do so; that accordingly, the defendants could properly swear to their belief in the plaintiff company’s insolvency and present a petition for its winding up.
Harman J said: ‘That appears to me to be sound reason and sound law. I re-enforce it by reference to a decision in Re a Company 1950 (94) SOL J 369 Visey J in the matter in which counsel of the utmost distinction in Chancery at that time both leading and junior counsel appeared said that where a Company was well known and wealthy it was the more likely the delay in settlement of its obligation would create suspicion of its financial embarrassment.’ ‘Rich man and rich companies which did not pay their debts had only themselves to blame if it were thought that they could not pay them.’
Harman J
[1986] 1 WLR 1, [1986] BCLC 26
Cited – Mann v Goldstein ChD 1968
Ungoed-Thomas J said: ‘When the creditor’s debt is clearly established it seems to me to follow that this court would not, in general at any rate, interfere even through the company would appear to be solvent, for the creditor would as such be . .
Cited – BNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.535113
Robert Goff LJ considering a request for an anti-suit ijunction, said: ‘foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceeding’. He went on to say: ‘Counsel suggested beguilingly that it would be technical for us to distinguish between parent and subsidiary company in this context; economically, he said, they were one. But we are concerned not with economics but with law. The distinction between the two is, in law, fundamental and cannot here be bridged.’
Robert Goff LJ
[1987] AC 45, [1986] 3 All ER 468, [1986] 3 WLR 414
Cited – 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.
Updated: 18 May 2022; Ref: scu.519364
Michael Briggs QC summarised the approach to be adopted by the court at the hearing of for the appointment of an interim liquidator pending the hearing of an insolvency petition brought by the Revenue: ‘Although the formulations of the approach to be adopted by the Court differ slightly, their effect is substantially the same and is as follows:
(1) These are not disputed debt cases. This is because the excise duty, and here the VAT, is due as provided for in the relevant assessment notwithstanding a pending appeal.
(2) Nonetheless the question whether the appeal has a real prospect of success or (which is the same thing) whether the debt created by the assessment is bona fide disputed on substantial grounds, is of central importance to the discretion whether to make a winding up order. In that respect Sir Andrew Morritt in the Arena case in the Court of Appeal said this at para.52:
‘If there is a real doubt as to the propriety of the assessments then the issue should be resolved by the tribunal not only because the tribunal is the forum prescribed by Parliament but also because it is not the function of the Companies Court in the exercise of its winding up jurisdiction to adjudicate in respect of a genuinely disputed debt. By contrast, a company which is unable to pay its debts is not to be permitted to delay its winding up by advancing spurious excuses for non payment of the petitioner’s debt’.
(3) Even if the material before the Companies Court does not lead to an affirmative answer to that question there is still a discretion to adjourn or even to dismiss the petition. Prominent in that analysis will be the question whether the company has had a fair opportunity to understand and to answer Customs’ case and to challenge the propriety of the assessment, and again I read from the judgment of Sir Andrew Morritt in Arena in the Court of Appeal at para.92:
‘In circumstances such as these it is essential that the procedure is fair. I understand that there is no prescribed form of assessment and no complaint was made about the form used in this case. Nevertheless it is important that the Commissioners should specify either in the assessment or a letter accompanying it what irregularity they rely on and the facts said to support the contention that the person assessed caused it. This would enable a person in receipt of such an assessment to challenge its propriety. If no such information is given, and the person assessed merely appeals, then the onus is on him to disprove causation without knowing what he is alleged to have caused. This could be oppressive, the more so as he is required to pay the assessed duty before appealing unless the Commissioners agree or the tribunal orders otherwise’.
Anglo Overseas would have been a case for the exercise of a discretion to dismiss or adjourn the petition rather than to make a winding up order had not Mr. Justice Lewison already concluded that there was a real prospect of success on appeal against the assessment.
(4) The Companies Court will not readily or lightly reject without cross-examination evidence tendered by the company in support of an allegation that it has a real prospect of success on appeal. The procedure for hearing of winding up petitions is not appropriate for the weighing of the relative strength or credibility of competing evidence. Furthermore, in cases such as the present, Customs has the additional burden of proving a serious fraud.
(5) But there may be cases, and Arena was confirmed, after some hesitation, in the Court of Appeal to be just such a case, where the company’s case is so completely at variance with the documents, or internally inconsistent, as to be capable of being branded ‘incredible’ without any form of trial. Alternatively, it may be possible for the Companies Court to see (as it did in Arena) that it will simply be impossible for the company to advance any case on appeal with any real credibility.’
Michael Briggs QC
[2006] EWHC 1596 (Ch)
England and Wales
Cited – Commissioners of Customs and Excise v Anglo German Breweries Limited ChD 29-Nov-2002
The respondents appealed against imposition of assessments for the diversion of alcohol products from bonded warehouses without payment of duties. Pretence had been made of deliveries abroad, but the goods were later diverted. The company was . .
Cited – The Commissioners for Customs and Excise, The Arena Corporation Limited v The Arena Corporation Limited / Schroeder ChD 12-Dec-2003
. .
Cited – Customs and Excise v Anglo Overseas Ltd ChD 5-Oct-2004
. .
Cited – In re The Arena Corporation Limited; Commissioners for Customs and Excise v The Arena Corporation Limited; the Arena Corporation Limited v Schroeder CA 25-Mar-2004
Sir Andrew Morritt V-C said that in the context of winding up proceedings the test for whether there is a genuine triable issue in a disputed claim, is whether the debt is bona fide disputed on substantial grounds, which, for practical purposes, is . .
Cited – HM Customs and Excise v Jack Baars Wholesale, Baars, and Baars CmpC 16-Jan-2004
. .
Cited – Revenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.510893
One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad become a partnership asset. The surviving brother now appealed against the arbitrator’s finding that it was not.
Held: The appeal failed. The quota, though registered in the name of the partnership, could not be separated from the land to which it was attached. It would not have been available on a dissoultion of the partnership under the 1890 Act to meet the creditors of the partnership.
Chadwick J
[1992] 1 EGLR 9
England and Wales
Cited – Smith v Mules 17-Feb-1852
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them . .
Cited – Ambler v Bolton CA 1872
An inalienable government contract held by one of the partners constituted a partnership asset. On the dissolution of the partnership, a value had to be given to it (since it could not be sold) and the partner who held it debited with that amount in . .
Cited – Pawsey v Armstrong ChD 1881
In the absence of agreement to the contrary, if there is goodwill attached to a business, it must on a dissolution, be sold for the benefit of all partners. The court ordered ‘An account of all dealings and transactions between the Plt and Deft as . .
Cited – Wachauf v Bundesamt Fur Ernahrung und Forstwirtschaft ECJ 13-Jul-1989
ECJ 1. The term ‘holding’ in Article 12(d) of Council Regulation No 857/84 relating to the application of the additional levy on milk covers all the agricultural production units which are the subject of a lease, . .
Applied – Davies v H and E Ecroyd Ltd ChD 1996
The partnership was made up of a 109 acre dairy holding owned by one partner, and the second partner managed the business. The dairy holding itself was kept out of the partnership assets by explicit agreement. D, the former manager claimed, on the . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.458598
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which the company had informed them of an impending price increase and that supplies would be discontinued. The defendant told the customer that he was leaving, and said he would be able to supply them himself. He began to prepare his business, buying in stock and taking on former and current employees of the claimant. The claimant now alleged breach of his fiduciary duties as director, of acting in conflict of interest, and of his duties of faithfulness as an employee.
Held: The mere intention to set up a competing business whilst employed as a director was not a breach of fiduciary duty, and nor did he have a duty to disclose that intention. Though general preparation were not a breach of his duty of fidelity as an employee, the taking of an order from a customer, and the taking on of an employee did each amount to such a breach.
There was no misues of confidential information. Although the new business used similar fibre mixes, the defendant’s own skill could account for his preparation of them without misuse of the claimant’s confidential information.
Falconer J said: ‘In my judgment an intention by a director of a company to set up business in competition with the company after his directorship has ceased is not to be regarded as a conflicting interest within the context of the principle, having regard to the rules of public policy as to restraint of trade, nor is the taking of preliminary steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he remains a director.’
Falconer J
[1990] FSR 385
England and Wales
Cited – Robb v Green 1895
An employee intending to enter business for himself may prepare for that step, provided he does not breach terms of his contract of employment or breach the confidence reposed in him by his employers. The duty may be breached by an employee . .
Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
See Also – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .
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 – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.442530
Application to restrain call for company’s Special General Meeting.
Gloster J
[2011] EWHC B5 (Comm)
England and Wales
Updated: 18 May 2022; Ref: scu.430500
Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: ‘Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors.’
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as ‘secret documents’.
The court concluded: ‘mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878.’
[1891] 1 Ch 627
Bills of Sales Act (1878) Amendment Act 1882, Bills of Sales Act 1878, Bills of Sale Act 1854, Companies Act 1862, Companies Clauses Act 1845
Applied – Read v Joannon 1890
The court considered the application of the 1878 Act.
Held: Where there are a series of Acts dealing with a topic and with similar names, the words ‘this Act’ in expressions such as ‘in this Act’ or ‘under this Act’ must be construed to mean . .
Cited – Clark v Balm, Hill and Co 1908
A company registered in Guernsey issued debentures creating floating charges over real and personal property in England. The court was asked whether the debentures ought to be deemed to be within the Bills of Sales Acts and so ought to have been . .
Cited – Online Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
Distinguished – Great Northern Railway Co v Cole Co-Operative Society 1896
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally . .
Cited – N V Slavenburg’s Bank v Intercontinental Natural Resources Ltd ChD 1980
The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.414890
The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of thc country in which the business is carried on accordingly. – A statute authorising an unincorporated company to sue and to be sued the name of its chairman, constitutes the chairman, when so suing or so sued, an agent for the members of the company in the aflairs of the company. – The members of a company formed for the purpose of carrying on business in a colony, are not discharged from liability on judgments obtained in the colony against the chairman, by reason of their having been resident in England, not being served with process, and having received no notice of the proceedings. – Where a statute subjects the property of members for the time being of an unincorporated company, to execution upon a judgment obtained against their chairman, reserving in other respects the liabilities of parties, the remedies given against the property are in cumulation, and a member may be proceeded against by action. – A judgment in a colonial court is no estoppel; nor is it pleadable in bar in an action brought in England for the same cause.
[1850] EngR 74, (1850) 9 CB 662, (1850) 137 ER 1052
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.297421
A railway company was constituted in 1846 for the purpose of making a railway from A. to B., with a diverging line to C. In June 1851 the line of railway from A. to B. was nearly completed, but no steps had been taken to construct the diverging line, An information was then filed by the Attorney-General, at the relation of certain parties claiming to be interested in the diverging line, to restrain the company from opening the line from A. to B, except with the intention of oompleting also the diverging line. Held, upon demurrer, that the neglect by the company to complete the whole line could not be regarded in the light of a public injury so as to warrant the interference of the Attorney General.
[1851] EngR 722, (1851) 3 Mac and G 453, (1851) 42 ER 335
Updated: 18 May 2022; Ref: scu.297038
By an Act of the Colonial Legislature of New South Wales, it was provided tbat a banking company should sue and be sued in the name of its chairman, arid that execution on any judgment against the oompany might be issued against the property of any member for the time being, in like manner as if such judgment had been obtairied against such member personally. In assumpsit against a member of the company on a judgment obtained in the colony against the chairman: Held, that the colonial Legislature had authority to pass the Act, and that there was nothing repugnant to the law of England, or to natural justice, in enacting that actions on contracts made by the company in the colony, instead of being brought against the shareholders individually, should be brought against the chairman whom they had appointed to represent them. That a judgment recovered in such an action, after service of process on the chairman, had the same effect beyond the territory of the colony which it would have had if the defendant had been personally served with process, and, he being a party to the record, the recovery had been personally against him. That, although in an action on a foreign or colonial judgment the judgment is examinable to a certain extent., as, for the purpose of shewing want of jurisdiction, or that defendant was not summoned, or that the judgment was fraudulently obtained, yet such judgment is not examinable upon the merits, as, for the purpose of shewing that the contract sued upon was not made, or was procured by fraud, or that the judgment was erroneous, But that a foreign or colonial judgment obtained against a co-contractor cannot be insisted on by way of merger in an action on the judgment.
[1851] EngR 77, (1851) 16 QB 717, (1851) 117 ER 1055
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.296393
In an action of debt for calls by a company formed under sta 7 and 8 Vict chapter 110 ; pleas nunquam indebitatus, and that the company was not completely registered : issues thereon : it is not indispensable that the plaintiffs should produce their certificate of registration, but the registering may be proved aliunde ; the certificate itself not being in issue. If, in such an action, the company’s deed of settlement be produced in evidence to prove the defendant a shareholder, and therefore liable under section 55 of the act, the deed is available for this purpose, though it appears that, since execution, the name of a shareholder, subscribed before that if the defendant, has been erased, and the erasure be not accounted for.
[1851] EngR 76, (1851) 16 QB 432, (1851) 117 ER 944
England and Wales
Updated: 18 May 2022; Ref: scu.296392
A corporation aggregate may be liable to an action for intentional acts of misfeasance by its servants, provided they are sufficiently connected with the scope and object of its incorporation. Therefore, in an action against a company established for conveying passengers by omnibuses in the streets of London, charging that the company by its servants wrongfully, vexatiously, and maliciously did certain acts (describing them) with a view to, and which in the result did, obstruct and annoy the plaintiff’ in the conduct of a similar trade :- Held, that, as the acts complained of were connected with the object and purpose for which the company was incorporated the company was responsible.
[1859] EngR 999, (1859) 7 CB NS 290, (1859) 144 ER 828
England and Wales
Updated: 18 May 2022; Ref: scu.288351
[1859] EngR 57, (1856, 1857, 1859) 7 CB NS 400, (1859) 144 ER 871
Updated: 18 May 2022; Ref: scu.287409
It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year’s salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation — Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’
Parke B
(1855) 10 Exch 845, [1855] EngR 220, (1855) 10 Exch 845, (1855) 156 ER 683
Applied – Smith v Cox 1942
The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
Cited – Treasure and Son Ltd v Dawes TCC 15-Sep-2008
The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.276500