Yorkshire Bank Plc v Hall and Others: CA 18 Dec 1998

The Court of Appeal is not strictly bound by the terms of leave to appeal given, but where the points had been specifically considered a point could only be heard with the leave of the Court of Appeal which had full power to regulate its own proceedings.

Judges:

Robert Walker LJ

Citations:

Times 14-Jan-1999, [1998] EWCA Civ 1961, [1999] 1 WLR 1713, [1999] 1 All ER 879

Links:

Bailii

Statutes:

Companies Act 1985 151

Jurisdiction:

England and Wales

Cited by:

CitedSilven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
CitedDen Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
CitedRoger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
CitedHardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .
CitedSilven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company

Updated: 30 November 2022; Ref: scu.90664

Milne v Kennedy and Others: CA 28 Jan 1999

Only in exceptional circumstances, should a lay person be allowed to represent a party in a county court. In this case no such exceptional circumstance had been established, and the decision was not to be upheld.

Judges:

Aldous and Waller LJJ

Citations:

Times 11-Feb-1999, [2000] CP Rep 80, [1999] TLR 106, [1999] EWCA Civ 668

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

AppliedD v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .

Cited by:

CitedIn Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Legal Professions

Updated: 30 November 2022; Ref: scu.83734

In Re Continental Assurance Company of London Plc (In Liquidation) (2): ChD 14 Jan 1999

The rules are intended to provide a comprehensive and unitary scheme of management of company liquidations, and in voluntary liquidation, the date of the resolution commencing the dissolution is to be used as the date of the winding up order.

Citations:

Gazette 10-Feb-1999, Times 14-Jan-1999

Statutes:

Insurance Companies (Winding Up) Rules 1985 95 L2

Jurisdiction:

England and Wales

Insurance, Insolvency, Company

Updated: 30 November 2022; Ref: scu.81817

In Re Devon and Somerset Farmers Ltd: ChD 25 May 1993

An Industrial and Provident Societies Act society is unregistered and is therefore not a company for the purposes of s40. Had that been intended express statutory provision would have been made.

Judges:

Hague QC J

Citations:

Times 25-May-1993, Gazette 01-Sep-1993, [1993] BCC 410

Statutes:

Insolvency Act 1986 40 251, Industrial and Provident Societies Act 1965, Companies Act 1985 735

Jurisdiction:

England and Wales

Citing:

DistinguishedIn Re International Bulk Commodities Ltd ChD 26-Aug-1992
Company receivers in insolvency can include unregistered companies. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 30 November 2022; Ref: scu.81846

Gill v The Continental Union Gas Company Limited: 1872

In an action under section 15 against a company for permitting the transfer of shares after notice of a charging order nisi, and before the making of it absolute, it is a good answer to show that the judgment debtor in whose name the shares stood had no beneficial interest in them.’
Bramwell B said: ‘The only stock that is to be charged is stock standing in the name of the judgement debtor in his own right, and if an order is made otherwise it is not within the competence of the judge to make it.’

Judges:

Baron Bramwell

Citations:

[1872] LR 7 Exch 332

Statutes:

Judgments Act 1838 15

Jurisdiction:

England and Wales

Cited by:

AppliedHawks v McArthur 1951
A transfer of the equitable interest in shares in breach of article 8(B) would nonetheless be effective.
Vaisey J said: There is, undoubtedly, a basic principle that a charging order only operates to charge the beneficial interest of the person . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 27 November 2022; Ref: scu.651080

Stubbins Marketing Ltd v Stubbins Food Partnerships Ltd and Others: ChD 19 May 2020

SML sought damages and/or equitable compensation pursuant to section 178(1) of the Companies Act 2006 and an indemnity pursuant to section 195(3)(b) of the 2006 Act against three of its former directors (or in the case of one of them his estate).

Citations:

[2020] EWHC 1266 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 178(1) 195(3)(b)

Jurisdiction:

England and Wales

Company, Equity

Updated: 27 November 2022; Ref: scu.650852

Lowick Rose Llp v Swynson Ltd and Another: SC 11 Apr 2017

Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was revealed.
Held: The accountants’ appeal succeeded. As a general rule ‘collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss’ and loss which has been avoided is not recoverable as damages, although expense reasonably incurred in avoiding it may be recoverable as costs of mitigation. To this there is an exception for collateral payments (res inter alios acta), which the law treats as not making good the claimant’s loss. It is difficult to identify a single principle underlying every case. In spite of what the Latin tag might lead one to expect, the critical factor is not the source of the benefit in a third party but its character. Broadly speaking, collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss.
In this case: ‘subrogation is not being invoked for its proper purpose, namely to replicate some element of the transaction which was expected but failed. It is being invoked so as to enable Mr Hunt to exercise for his own benefit the claims of Swynson in respect of an unconnected breach of duty under a different transaction between different parties more than two years earlier.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord, Hodge

Citations:

[2017] UKSC 32, [2017] 3 All ER 785, [2017] 2 WLR 1161, [2017] 1 CLC 764, [2017] WLR(D) 257, 171 Con LR 75, [2018] AC 313, [2017] PNLR 18, UKSC 2015/0170

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC 2017 Apr 11 Video

Jurisdiction:

England and Wales

Citing:

CitedDunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
CitedIn Re Lee’s Patent PC 16-Jun-1856
. .
CitedBradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Appeal fromSwynson Ltd v Lowick Rose Llp CA 25-Jun-2015
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising . .
CitedBritish Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
CitedParry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
CitedBurston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
CitedAlbacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
At First InstanceSwynson Ltd and Another v Lowick Rose Llp ChD 30-Jun-2014
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the . .
CitedChetwynd v Allen 1899
A lender M advanced pounds 1,200 to pay off an existing mortgage held by T over a property owned by the plaintiff. M made the advance on the basis of certain misleading representations and non-disclosures by the plaintiff’s husband. M was told that . .
CitedPaul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
CitedArab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
CitedDarlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
CitedLondon and South of England Building Society v Stone CA 1983
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ . .
CitedDarlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
CitedRevenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedEdinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
CitedTFL Management Services Ltd v Lloyds Bank Plc CA 14-Nov-2013
The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers . .

Cited by:

CitedTiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence, Damages

Updated: 27 November 2022; Ref: scu.581644

VTB Capital Plc v Nutritek International Corp and Others: CA 20 Jun 2012

The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for resolution of VTB’s tort claims, and nor that there was a proper basis for piercing the corporate veil. The parties were all based abroad, and only the initiation of the alleged fraud had occurred here.
Held: The appeal failed. The burden was on the claimant to persuade the court that England is clearly or distinctly the appropriate forum. The claimant would not be given leave to serve the documents outside the jurisdiction, and nor had it been shown to warranted to pierce the corporate veil.

Judges:

Lloyd, Rimer, Aikens LJJ

Citations:

[2012] EWCA Civ 808, [2012] WLR(D) 181, [2012] 2 Lloyd’s Rep 313, [2012] 2 CLC 431, [2012] 2 BCLC 437

Links:

Bailii, WLRD

Statutes:

Private International Law Act (Miscellaneous Provisions) Act 1995 11(2)(c)

Jurisdiction:

England and Wales

Citing:

Appeal fromVTB Capital Plc v Nutritek International Corp and Others ChD 29-Nov-2011
The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. The defendants now sought to have the service set aside. The claimants also sought permission to amend the . .

Cited by:

Appeal fromVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedAbela and Others v Baadarani SC 26-Jun-2013
The claimants sought damages alleging fraud in a company share purchase. They said that their lawyer had secretly been working for the sellers. The claim form had been issued, but the claimant had delayed in requesting permission for its service . .
CitedGoogle Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction, Company

Updated: 27 November 2022; Ref: scu.460544

VTB Capital Plc v Nutritek International Corp and Others: ChD 29 Nov 2011

The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. The defendants now sought to have the service set aside. The claimants also sought permission to amend the pleadings to set aside the veil of incorporation to add three further defendants.
Held: Leave was set aside. The application to amend was refused. The evidence did not establish a real risk of dissipation of assets by the fourth defendant and the original order was tainted by material non-disclosure by the claimant to the court.

Judges:

Arnold J

Citations:

[2011] EWHC 3107 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

At First InstanceVTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Appeal fromVTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company, Jurisdiction

Updated: 27 November 2022; Ref: scu.449025

Willis v Association of Universities of the British Commonwealth: CA 1965

The landlord resisted renewal of the business tenancy saying that he intended to occupy the premises himself. The Court was asked whether the landlord could show the necessary intention under section 30(1)(g) where it intended to occupy the premises for the purposes of its business, but had passed a resolution to enter liquidation for the purposes of reconstruction and to transfer its assets to a successor company in order to convert from a limited company into a chartered company.
Lord Denning MR said: ‘The answer to [the point that the landlord did not intend to occupy the premises itself] is, I think, that the landlords did in fact intend to occupy the premises themselves even if only for the short time that should ensue before the transfer. Section 30(1)(g) of the Act of 1954 does not say for how long the landlord must intend to occupy himself, and the courts must fill the gap. It seems to me that in some cases even a short time may suffice. Take the case where the landlord intends to occupy the premises and to carry on business himself there for six months, and then transfer the business to his son as a family arrangement. I should have thought that the father would have sufficient intention to satisfy section 30(1)(g). But suppose the intention was after six months to transfer to a purchaser for cash, I should not expect that intention to suffice. Just as a purchaser within the previous five years cannot defeat the tenant (see section 30(2)), so also a purchaser shortly afterwards should not be able to defeat him. The matters that influence me are these. It is open to the landlord to complete the transfer before the day of hearing, in which case it is the successor’s intention which counts – see section 30(1)(g) – save only that if that successor falls foul of section 30 (2) his intention does not count. Hence I would say that if the landlord intends to occupy the premises and carry on business himself there for a time, and then to transfer to a successor, his intention is sufficient to satisfy section 30(1)(g), unless the intended transfer is one which, if it had been made before the hearing, would have fallen within section 30(2) so as to render section 30(1)(g) unavailable.
Applying those principles to this case it seems to me that the intent of the landlords is sufficient to satisfy section 30(1)(g). They intend to occupy the premises and to carry on their activities therein (by providing the detailed administration for the Universities Central Council on Admissions) and then to transfer their activities to their successors, the chartered company, without any payment in money or anything in the nature of sale or purchase.
The landlords have established, therefore, the statutory ground of opposition. The tenants are not entitled to a new lease.’
Pearson LJ said that the landlord and its successor company were in practice and substance the same: an intention to carry out a sale after taking possession would mean that the landlord had not shown the necessary intention: ‘This case falls within the literal meaning of section 30(1)(g) as the landlords do intend to occupy the premises for the purposes of a business to be carried on by them therein, though only for a short time until transfer of the occupation and the business to the chartered corporation. The transfer will not be by way of sale. and there will be only a formal change of identity. In form the landlords are a limited company which is being wound up, and a new chartered corporation has been created. In substance, however, there is continuity. The phrase alter ego undoubtedly lacks precision for most purposes, but for the present purpose it is a fair description of the landlords in their new guise of the chartered corporation as successors of the landlords in their old guise of the limited company.
There must, however, be some qualification of the literal meaning of section 30(1)(g) of the Act of 1954. A landlord should not be allowed to succeed under section 30(1)(g) in a case where his intention is only to start a business at the premises and carry it on for a few weeks and then sell his interest in the premises and the business. If the sale took place before the hearing the purchaser would be precluded by section 30 (2) from relying on section 30 (1) (g). It should not be possible to evade section 30 (2) by postponing the intended sale until after the hearing. There is, therefore, an implied limitation on the operation of section 30 (1) (g); it is not applicable if the landlord’s intention is to occupy for only a short time and then make a sale. The implied limitation should not be any greater than is necessary to secure consistency between section 30 (1) (g) and section 30 (2). Probably section 30 (1) (g) can be allowed to apply according to its terms without implied limitation in any case where no sale is intended. Certainly it should be allowed to apply according to its terms in a case such as the present where there is no intended transaction even resembling a sale and there is to be complete continuity of operation, and the only transfer is to be a formal transfer to an alter ego of the transferor.’
Salmon LJ said that: ‘The argument runs that, at best, the period during which the landlords will carry on business there before the transfer is so short that the landlords’ real purpose in occupying the premises is to effect the transfer. It is pointed out that in the ordinary case a landlord could not defeat the tenant’s right to a new lease if he intended to occupy the premises and carry on business there for only a few days or weeks before selling them. In such circumstances his real purpose would be to sell the premises, not to carry on business there. No doubt that is so.
If, however, a landlord not being a company, intended to occupy the premises and carry on business there as long as he lived or was physically capable of doing so, his rights under the Act of 1954 could not, in my judgment, be defeated by showing that his expectation of life or of retaining his strength happened to be very short. The tenant could not successfully argue that the landlord’s real intention was merely to transfer the premises to his heirs. If the landlord died before the termination of the tenancy, or indeed at any time before the hearing, his heirs would stand in his shoes and succeed to his rights. They could not be defeated because they had inherited only recently; Landlord and Tenant Act, 1954, ss. 30 (2) and 41 (2). So, too, if a landlord transferred otherwise than for money or money’s worth at any time, his transferee would succeed to his rights against the tenant; H. L. Bolton Engineering Co. Ltd. v. T. J. Graham and Co. Ltd.
Here the circumstances are somewhat analogous. The landlord association will be dissolved, for all practical purposes, as soon as the transfer to the new chartered association is complete. It intends to carry on its activities, inter alia, in the three rooms on the top floor of No. 29, Tavistock Square, virtually for the rest of its life, short as that may be. Moreover (and this is of crucial importance), it is quite plain that the transfer to the new chartered association will be by way of gift, and not for any financial consideration. In these circumstances there seems to me to be no reason on principle or authority why the probable brevity of the landlords’ occupation of the three top rooms should confer any benefit upon the tenants, and in my view it does not do so. If the transfer to the chartered association had been completed before the county court hearing, the tenants would clearly have had no right to a new lease. I am glad to think that the law does not make the rights of the parties depend upon the fortuitous circumstance as to whether the transfer is executed sooner rather than later.’

Judges:

Denning MR, Pearson, Salmon LJJ

Citations:

[1965] 1 QB 140, [1965] 2 All ER 393

Statutes:

Landlord and Tenant Act 1954 30(1)(g)

Jurisdiction:

England and Wales

Citing:

CitedHL Bolton (Engineering) Co Ltd v TJ Graham and Sons Ltd CA 1957
The landlord asserted that a tenancy should not be renewed and claimed to have held the freehold for more than 5 years.
Held: The Landlord had only become the reversioner to the lease after accepting a surrender of the head lease. The Act . .

Cited by:

CitedPatel and Another v Keles and Another CA 12-Nov-2009
The landlord objected to the renewal of the lease, saying that he intended to occupy the premises for his own business. The court had found that he intended to sell the property.
Held: The landlord’s appeal failed. Parliament has not laid down . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Company

Updated: 27 November 2022; Ref: scu.379555

Smith v Charles Building Services Ltd and Another: CA 19 Jan 2006

An application was made for the rectfication of the company’s registers.
Held: The claimant’s name had been improperly removed from the register, and therefore he was prima facie entitled to a rectification. However even if rectified, the beneficial ownership of any share would remain unresolved. The appeal was dismissed.

Judges:

Waller LJ, Arden LJ, Sir Martin Nourse

Citations:

[2006] EWCA Civ 14

Links:

Bailii

Statutes:

Companies Act 1985 359

Jurisdiction:

England and Wales

Citing:

CitedRe Sussex Brick Co Ltd 1904
The court should not generally order rectification of a company’s registers where this would prejudice third party rights. Vaughan Williams LJ said: ‘I do not mean for a moment to suggest that any one is entitled to such an order ex debito . .
Appeal fromSmith v Charles Building Services Ltd and Another ChD 22-Apr-2005
The claimant said that his name had been removed from the company register unlawfully. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 27 November 2022; Ref: scu.237740

Express Newspapers v Telegraph Group Ltd (402): CA 15 Mar 2002

Citations:

[2002] EWCA Civ 402

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoExpress Newspapers v Telegraph Group Ltd CA 15-Mar-2002
The parties entered into a joint venture for the provision of printing resources. This survived until one member company changed hands, when there were disagreements about a shareholder’s agreement. There were difficulties of construction.

Cited by:

See AlsoExpress Newspapers v Telegraph Group Ltd CA 15-Mar-2002
The parties entered into a joint venture for the provision of printing resources. This survived until one member company changed hands, when there were disagreements about a shareholder’s agreement. There were difficulties of construction.
Lists of cited by and citing cases may be incomplete.

Company

Updated: 27 November 2022; Ref: scu.216918

Express Newspapers v Telegraph Group Ltd: CA 15 Mar 2002

The parties entered into a joint venture for the provision of printing resources. This survived until one member company changed hands, when there were disagreements about a shareholder’s agreement. There were difficulties of construction.
Held: Because this was a pure construction of a commercial agreement, there was no restriction on appellate jurisdiction to interpret the document. In the circumstances there might be an unfair prejudice, and the striking out of the petitioner’s claim should not stand.

Judges:

Lord Justice Aldous

Citations:

[2002] EWCA Civ 317

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

See AlsoExpress Newspapers v Telegraph Group Ltd (402) CA 15-Mar-2002
. .
Appeal fromExpress Newspapers v The Telegraph Group Ltd ChD 31-Jul-2001
. .

Cited by:

See AlsoExpress Newspapers v Telegraph Group Ltd (402) CA 15-Mar-2002
. .
Appealed toExpress Newspapers v The Telegraph Group Ltd ChD 31-Jul-2001
. .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 27 November 2022; Ref: scu.168092

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 before a winding up of the partnership were also held in trust. The benefit of a non-assignable contract may be ‘property’ for the purposes of the Partnership Act 1890.
Morritt LJ stated: ‘The question whether, in the terms of section 20 of the Partnership Act 1890 an asset is ‘brought into the partnership stock or acquired . . on account of the firm . . or for the purposes and in the course of the partnership business’ does not depend on whether it is assignable at law. In both Ambler v. Bolton . . and Pathirana v. Pathirana . . the asset was inalienable. In both cases the inalienable asset had been acquired by the individual partner in his own name during the subsistence of the partnership but was still treated as acquired on account of the firm. In my view, it would make no difference if the asset had been acquired before the commencement of the partnership but the partner in question was required by the terms of the partnership to bring it into the common stock. The reason is quite simply that partnership property within section 20 of the Partnership Act 1890 includes that to which a partner is entitled and which all the partners expressly or by implication agree should, as between themselves, be treated as partnership property. It is immaterial, as between the partners, whether it can be assigned by the partner in whose name it stands to the partners jointly.’

Judges:

Morritt LJ

Citations:

Times 09-Feb-1999, [1998] EWCA Civ 1794, [2000] Ch 291, [2000] 1 BCLC 607, [1999] EMLR 402, [1999] 1 Lloyds Rep 588, [1999] 3 WLR 276, [1999] 2 All ER 218

Statutes:

Partnership Act 1890

Jurisdiction:

England and Wales

Citing:

Appeal fromDon King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .

Cited by:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 27 November 2022; Ref: scu.145273

Siemens Bros and Co Ltd v Burns: CA 1918

The rights of mortgagees of shares, registered in their names, might be qualified by contractual provisions.
Swinfen Eady MR explained: ‘In the ordinary way, where shares are transferred to and registered in the name of a mortgagee it follows, from his position as owner at law of the shares, that the ownership carries with it the voting right, that this is vested in the owner of the shares; and it would require a contract to exclude that right. Sometimes, where shares form a security, there is a contemporaneous collateral agreement as to the mode in which, and the extent to which, voting rights in respect of the shares shall be exercised. But in the absence of any such agreement the voting rights would be with the legal owners of the shares, and it would require a contract to control the exercise of those rights’

Judges:

Swinfen Eady MR

Citations:

[1918] 2 Ch 324

Jurisdiction:

England and Wales

Company

Updated: 27 November 2022; Ref: scu.662432

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 the activities which a solicitor would normally undertake, that in favour of third parties, it must be assumed that he acted in the ordinary course of his business, and the partners were vicariously liable. It had been said that the acts were equitable wrongs, and did not fall within the compass of common law torts or deceit, but nothing in the 1890 Act restricted the applicability of the section to exclude these acts. Explicit authorisation by each partner of the acts of other partners could not be expected or required for vicarious liability to be established. ‘Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.’
Lord Millett said: ‘Vicarious liability is a loss distribution device based on grounds of social and economic policy. Its rationale limits the employer’s liability to conduct occurring in the course of the employee’s employment. ‘The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on . . .the ultimate question is whether or not it is just that the loss resulting from the servant’s acts should be considered as one of the normal risks to be borne by the business in which the servant is employed.’
He also said that it is preferable to substitute dog Latin for bastard French.
Lord Nicholls said that: ‘This ‘close connection’ test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. It provides no clear assistance on when, to use Professor Fleming’s phraseology, an incident is to be regarded as sufficiently work-related, as distinct from personal’ . . This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable.’
and ‘The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.’
Lord Millett explained the structure and effect of section 9 of the 1980 Act: ‘Section 9 is not concerned with the liability of the firm at all but with the liability of the individual partners. It provides that every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he was a partner. Section 12 makes every partner jointly and severally liable for loss for which the firm was liable under sections 10 and 11 while he was a partner in the firm. Where section 10 makes the firm vicariously liable for loss caused by a partner’s wrongdoing, therefore, section 12 makes the liability the joint and several liability of the individual partners. Sections 11 and 13 are not concerned with wrongdoing or with vicarious liability but with the original liability of the firm to account for receipts. . . Section 11 deals with money which is properly received by the firm in the ordinary course of its business and is afterwards misappropriated by one of the partners. The firm is not vicariously liable for the misappropriation; it is liable to account for the money it received, and cannot plead the partner’s wrongdoing as an excuse for its failure to do so. Section 13 deals with money which is misappropriated by a trustee who happens to be a partner and who in breach of trust or fiduciary duty afterwards pays it to his firm or otherwise improperly employs it in the partnership business. The innocent partners are not vicariously liable for the misappropriation, which will have occurred outside the ordinary course of the firm’s business. But they are liable to restore the money if the requirements of the general law of knowing receipt are satisfied.’

Judges:

Slynn of Hadley, Nicholls of Birkenhead, Hutton, Hobhouse of Woodborough, and Millett LL

Citations:

Times 06-Dec-2002, [2003] 1 Lloyd’s Rep 65, [2002] UKHL 48, [2002] 3 WLR 1913, [2003] 2 AC 366, [2003] 1 All ER 97, [2003] 2 All ER (Comm) 451, [2003] 1 LLR 65, [2003] 1 BCLC 32, [2003] IRLR 608, [2003] 1 CLC 1020, [2003] WTLR 163

Links:

House of Lords, Bailii

Statutes:

Civil Liability (Contributions) Act 1978 1(1), Partnership Act 1890 10, Limitation act 1980 9 21

Jurisdiction:

England and Wales

Citing:

Appeal fromDubai Aluminium Company Limited v Salaam and others CA 7-Apr-2000
The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who . .
CitedAttorney General v Stanyforth 1721
Co-partners are liable for penalties incurred, for instance, for breach of revenue laws. . .
CitedBarnes v Addy 12-Feb-1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .
CitedMorris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .
CitedBarwick v English Joint Stock Bank 1867
When considering the vicarious liability of a master for the acts of his servant, no sensible distinction could be drawn between the case of fraud and any other wrong. The general rule was that: ‘the master is answerable for every such wrong of the . .
CitedHamlyn v John Houston and Co CA 1903
One side of the defendant’s business as grain merchants was to obtain, by lawful means, information about its competitors’ activities. Houston, a partner in the firm, obtained confidential information on the plaintiff Hamlyn’s business by bribing . .
CitedLloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
CitedPlumb v Cobden Flour Mills Co Ltd HL 1914
In looking at restrictions by an employer to limit his vicarious liability, the court must distinguish between prohibitions which limit the sphere of employment and those which only deal with conduct within the sphere of employment:’ ‘there are . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedBugge v Brown 1919
When an employee acts ‘so as to be in effect a stranger in relation to his employer with respect to the act he has committed’, his employer does not have vicarious liability for his acts. . .
CitedLister and others v Hesley Hall Ltd CA 7-Oct-1999
Where a residential worker at a children’s home committed sexual abuse on children within his care, the company running the home were not vicariously liable for the acts themselves, but also were not responsible where the worker did not report his . .
CitedKooragang Investments Pty Ltd v Richardson and Wrench Ltd PC 27-Jul-1981
(New South Wales) An employee of the defendants was authorised to carry out valuations, but he negligently carried out an unauthorised private valuation.
Held: In doing so he was not acting as an employee of the defendant company. The company . .
CitedGenerale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
CitedMara v Browne CA 17-Dec-1895
In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on . .
CitedRoyal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
DoubtedIn re Bell’s Indenture 1980
A firm of solicitors was held not to be vicariously liable for an act of dishonest assistance made by a partner. . .
CitedFisher v CHT Ltd (No 2) 1966
Where more than one defendant is liable in damages, the court will make allowance for the insolvency of one when ordering a contribution from the others. . .
CitedK v P ChD 1993
The court considered when orders might be made under the Act for a contribution to be made to damages payable. Ferris J said: ‘In my judgment the ex turpi causa defence is not available as an answer to a claim for contribution under the Act of 1978. . .
CitedBrydges v Branfill 1842
A tenant for life of settled land set out on an elaborate fraud aiming for the capital. It required first a private Act of Parliament to enable the estate to be sold under the direction of the court and the proceeds paid into court and invested in . .
CitedSt Aubyn v Smart 1868
. .
CitedAshworth v Stanwix QBD 1860
Innocent partners are vicariously liable for the torts of their co-partner. . .
CitedMeekins v Henson 1964
The section in the 1890 Act produced ‘a necessary equation of a partnership firm with employers for this purpose [vicarious liability]’. Vicarious liability is a ‘secondary liability as the liability of one person for the act of another who is . .
CitedRe Fryer 1857
The acts of a solicitor as an express trustee are not within the scope of the ordinary business of a solicitor. . .
CitedTaylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .
CitedClarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
CitedNavarro v Moregrand Ltd 1951
The vicarious liability of an employer does not depend upon the employee’s authority to do the particular act which constitutes the wrong. It is sufficient if the employee is authorised to do acts of the kind in question. . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedSelangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
CitedCoulthard v Disco Mix Club Ltd CA 2000
The expression ‘constructive trustee’ creates a trap.This ‘type of trust is merely the creation by the court . . to meet the wrongdoing alleged: there is no real trust and usually no chance of a proprietary remedy.’ . .
At First InstanceDubai Aluminium Company Ltd v Salaam and Others QBD 17-Jul-1998
A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later . .
See AlsoDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

CitedNIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
CitedMattis v Pollock (T/A Flamingo’s Nightclub) CA 1-Jul-2003
A nightclub employed an unlicensed bouncer/doorman. After an altercation in and outside the club, he went home, and returned armed and seriously assaulted the customer.
Held: The club had vicarious liability for his acts. There was a . .
CitedJ J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
CitedBakhitar v Keosghgerian and Others QBD 3-Dec-2003
Employer liable for employee with criminal record
An employee of a firm of solicitors took pawned jewellery to show to a third party possible purchaser. The jewels were misappropriated.
Held: The person involved, who was known to have a criminal record for fraud was for all relevant purposes . .
CitedCochlan v Ruberella Limited CA 21-Jul-2003
The issue arose as to the liability of a firm for the acts of a partner who had made statements to the claimant regarding the rate of return on a proposed investment amounting to some 6,000 per cent per annum.
Held: The following propositions . .
CitedThe Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
CitedBernard v The Attorney General of Jamaica PC 7-Oct-2004
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
CitedBrown v Robinson and Sentry PC 14-Dec-2004
(Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent . .
CitedHawley v Luminar Leisure Ltd and others CA 24-Jan-2006
The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedSt Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
CitedCharter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
CitedGravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
CitedMaga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
CitedWeddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
CitedReynolds v Strutt and Parker LLP ChD 15-Jul-2011
The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
CitedThe Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
CitedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
CitedGraham v Commercial Bodyworks Ltd CA 5-Feb-2015
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .
CitedJackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
CitedCox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
CitedDixon Coles and Gill (A Former Firm) v Baines, Bishop of Leeds and Another CA 20-Jul-2021
Innocent Co-Trustee not Liable for Default
Proceedings were brought by former clients against their former solicitors. One of the partners stole money held in the firm’s client account on behalf of the claimants. The other two partners were entirely innocent of, and in no way implicated in, . .
CitedChell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive Pellet Use Not Within Employee’s Role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .
CitedWM Morrison Supermarkets Plc v Various Claimants SC 1-Apr-2020
A disgruntled senior employee had divulged on the internet personal details of several thousand employees. The claimants alleged that that had been a breach of the 1998 Act, and that the appellants were vicariously liable for that wrong.
Held: . .
Lists of cited by and citing cases may be incomplete.

Company, Vicarious Liability, Legal Professions, Limitation

Leading Case

Updated: 27 November 2022; Ref: scu.178327

Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan: CA 4 Dec 1992

No Judicial Review of Decisions of Private Body

Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. The relationship is in contract between the club and its member.
Sir Thomas Bingham MR said: ‘No serious racecourse management, owner, trainer or jockey can survive without the recognition or licence of the Jockey Club. There is in effect no alternative market in which those not accepted by the Jockey Club can find a place or to which race goers may resort. Thus by means of the rules and its market domination the Jockey Club can effectively control not only those who agree to abide by its rules but also those — such as disqualified or excluded persons seeking to participate in racing activities in any capacity — who do not. For practical purposes the Jockey Club’s writ runs in the British racing world, to the acknowledged benefit of British racing.’
As to the rules of racing: ‘The Rules of Racing are a skilfully drafted, comprehensive and far-reaching code of rules through which the Jockey Club exercises its control over racing in this country.’
Farquharson LJ said: ‘there has never been any doubt that public law remedies do not lie against domestic bodies, as they derive solely from the consent of the parties. . The question remains whether the Jockey Club, or this particular decision of it, can properly be described as a domestic body acting by consent.
. . The courts have always been reluctant to interfere with the control of sporting bodies over their own sports and I do not detect in the material available to us any grounds for supposing that, if the Jockey Club were dissolved, any governmental body would assume control of racing. Neither in its framework nor its rules nor its function does the Jockey Club fulfil a governmental role.
I understand the criticism made by Mr. Kentridge of the reality of the consent to the authority of the Jockey Club. The invitation to consent is very much on a take it or leave it basis. But I do not consider that this undermines the reality of the consent. Nearly all sports are subject to a body of rules to which an entrant must subscribe. These are necessary, as already observed, for the control and integrity of the sport concerned. In such a large industry as racing has become, I would suspect that all those actively and honestly engaged in it welcome the control of licensing and discipline exerted by the Jockey Club.
For these reasons I would hold that the decision of the Disciplinary Committee of the Jockey Club to disqualify Aliysa from the 1989 Oaks is not susceptible to judicial review.
As to Mr. Milmo’s assertion that the question of the Jockey Club’s susceptibility to judicial review must be answered on an all or nothing basis, I can only say as at present advised that I do not agree. . . While I do not say that particular circumstances would give a right to judicial review I do not discount the possibility that in some special circumstances the remedy might lie. If for example the Jockey Club failed to fulfil its obligations under the charter by making discriminatory rules, it may be that those affected would have a remedy in public law.
In the present appeal there is no hardship to the applicant in his being denied judicial review. If his complaint that the disciplinary committee acted unfairly is well-founded there is no reason why he should not proceed by writ seeking a declaration and an injunction. Having regard to the issues involved it may be a more convenient process. I would dismiss the appeal.’
Hoffmann LJ said: ‘It is true that in some countries there are statutory bodies which exercise at least some control over racing. It appears from Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 that this is the position in Tasmania and we were told that it was also true of certain of the United States. But different countries draw the line between public and private regulation in different places. The fact that certain functions of the Jockey Club could be exercised by a statutory body and that they are so exercised in some other countries does not make them governmental functions in England. The attitude of the English legislator to racing is much more akin to his attitude to religion (see Reg v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 WLR 1036): It is something to be encouraged but not the business of government.
All this leaves is the fact that the Jockey Club has power. But the mere fact of power, even over a substantial area of economic activity, is not enough. In a mixed economy, power may be private as well as public. Private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the rules of public law. If control is needed, it must be found in the law of contract, the doctrine of restraint of trade, the Restrictive Trade Practices Act 1976, articles 85 and 86 of the EEC Treaty and all the other instruments available in law for curbing the excesses of private power.
It may be that in some cases the remedies available in private law are inadequate. For example, in cases in which power is exercised unfairly against persons who have no contractual relationship with the private decision-making body, the court may not find it easy to fashion a cause of action to provide a remedy. In Nagle v Feilden [1966] 2 QB 633, for example, this court had to consider the Jockey Club’s refusal on grounds of sex to grant a trainer’s licence to a woman. She had no contract with the Jockey Club or (at that time) any other recognised cause of action, but this court said that it was arguable that she could still obtain a declaration and injunction. There is an improvisatory air about this solution and the possibility of obtaining an injunction has probably not survived Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA[1979] AC 210.
It was recognition that there might be gaps in the private law that led Simon Brown J. in Reg v Jockey Club, Ex parte RAM Racecourses Ltd. [1993] 2 A11 ER 225 to suggest that case like Nagle v Feilden [1966] 2 QB 633, as well as certain others involving domestic bodies like the Football Association in Eastham v Newcastle United Football Club Ltd [1964] Ch 413 and a trade union in Breen v. Amalgamated Engineering Union [1971] 2 QB 175, ‘had they arisen today and not some years ago, would have found a natural home in judicial review proceedings.’ For my part, I must respectfully doubt whether this would be true. Trade unions have now had obligations of fairness imposed upon them by legislation, but I doubt whether, if this had not happened, the courts would have tried to fill the gap by subjecting them to public law. The decision of Rose J. in Reg v. Football Association Ltd, Ex parte Football League Ltd, The Times, 22 August 1991, which I found highly persuasive, shows that the same is probably true of the Football Association. I do not think that one should try to patch up the remedies available against domestic bodies by pretending that they are organs of government.
In the present case, however, the remedies in private law available to the Aga Khan seem to me entirely adequate. He has a contract with the Jockey Club, both as a registered owner and by virtue of having entered his horse in the Oaks. The club has an implied obligation under the contract to conduct its disciplinary proceedings fairly. If it has not done so, the Aga Khan can obtain a declaration that the decision was ineffective (I avoid the slippery word void) and, if necessary, an injunction to restrain the club from doing anything to implement it. No injustice is therefore likely to be caused in the present case by the denial of a public law remedy.’
Sir Thomas Bingham MR said that the test was whether the powers exercised were governmental: ‘I have little hesitation in accepting the applicant’s contention that the Jockey Club effectively regulates a significant national activity, exercising powers which affect the public and are exercised in the interest of the public. I am willing to accept that if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so.
But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a Royal Charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its representation on the Horserace Betting Levy Board, no doubt as a body with an obvious interest in racing, but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horseracing, perhaps because it has itself controlled horseracing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the result that while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental. The discretion conferred by section 31(6) of the Supreme Court Act 1981 to refuse the grant of leave or relief where the applicant has been guilty of delay which would be prejudicial to good administration can scarcely have been envisaged as applicable in a case such as this.
I would accept that those who agree to be bound by the Rules of Racing have no effective alternative to doing so if they want to take part in racing in this country. It also seems likely to me that if, instead of Rules of Racing administered by the Jockey Club, there were a statutory code administered by a public body, the rights and obligations conferred and imposed by the code would probably approximate to those conferred and imposed by the Rules of Racing. But this does not, as it seems to me, alter the fact, however anomalous it may be, that the powers which the Jockey Club exercises over those who (like the applicant) agree to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review. It would in my opinion be contrary to sound and long-standing principle to extend the remedy of judicial review to such a case.

‘It is unnecessary for purposes of this appeal to decide whether decisions of the Jockey Club may ever in any circumstances be challenged by judicial review and I do not do so. Cases where the applicant or plaintiff has no contract on which to rely may raise different considerations and the existence or non-existence of alternative remedies may then be material. I think it better that this court should defer detailed consideration of such a case until it arises. I am, however, satisfied that on the facts of this case the appeal should be dismissed.’

Judges:

Sir Thomas Bingham MR, Farquharson LJ, Hoffmann LJ

Citations:

[1993] 1 WLR 909, [1992] EWCA Civ 7

Links:

Bailii

Statutes:

Civil Procedure Rules 54

Jurisdiction:

England and Wales

Citing:

CitedLaw v National Greyhound Racing Club Limited CA 29-Jul-1983
The plaintiff alleged abuse of the discretion conferred on the club by the rules. His trainer’s licence had been suspended. He said that it was contrary to an implied term of an agreement between the trainer and the racing club that any action taken . .

Cited by:

CitedWright v The Jockey Club QBD 15-May-1995
A jockey had been refused a jockey’s licence for medical reasons. He sought damages for his loss of earnings. The club applied to strike out the claim as showing no arguable cause of action.
Held: The duties of a body exercising a licensing . .
CitedMullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
CitedStretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Lists of cited by and citing cases may be incomplete.

Company, Natural Justice, Civil Procedure Rules, Administrative

Leading Case

Updated: 27 November 2022; Ref: scu.197904

VTB Capital Plc v Nutritek International Corp and Others: SC 6 Feb 2013

The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for resolution of VTB’s tort claims, and nor that there was a proper basis for piercing the corporate veil.
Held: The appeal as to jurisdiction was dismissed (Clarke, Reed LL dissenting). The appeal as to piercing the corporate veil was dismissed unanimously. The limited burden on a defendant challenging jurisdiction is to identify the issues and how they might arise. It was wrong to approach such a decision as the equivalent to a trial. Permission to serve on a foreign resident should be refused unless the court felt it clear that England is the appropriate forum, but an appellate court should intervene only in the case of error.
The conclusion below that Russian law governed the case had been incorrect but had not affected the result. The choice of law was separate from and did not determine the choice of forum.
There was insufficient cause shown to pierce the corporate veil, and permission to amend to allow this argument should not be granted.

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Wilson, Lord Reed

Citations:

UKSC 2012/0167, [2013] UKSC 5, [2013] WLR(D) 41, [2013] 1 All ER 1296, [2013] BCC 514, [2013] 1 CLC 153, [2013] 1 Lloyd’s Rep 466, [2013] 2 AC 337, [2013] 1 BCLC 179, [2013] 1 All ER (Comm) 1009, [2013] 2 WLR 398

Links:

Bailii, WLRD, Balii Summary, SC, SC Summ

Statutes:

Private International Law Act (Miscellaneous Provisions) Act 1995

Jurisdiction:

England and Wales

Citing:

At First InstanceVTB Capital Plc v Nutritek International Corp and Others ChD 29-Nov-2011
The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. The defendants now sought to have the service set aside. The claimants also sought permission to amend the . .
Appeal fromVTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
CitedGilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
CitedAntonio Gramsci Shipping Corp and Others v Stepanovs ComC 25-Feb-2011
The claimant companies alleged that the defendants had used the claimant’s parent’s companies wrongfully to syphon off money from the claimants by interposing contract between the lcimants and their proper customers. In this action the claimant . .
CitedAntonio Gramsci Shipping Corp and Others v Recoletos Ltd and Others ComC 12-Jul-2012
The seventh defendant sought to be excused from the case denying the court’s jurisdiction. He had been a director. . .
CitedAlliance Bank JSC v Aquanta Corporation and Others ComC 14-Dec-2011
The defendants applied to have set aside the leave to serve proceedings on them out of the jurisdiction. . .
CitedSmith v Hughes QBD 6-Jun-1871
Blackburn J said: ‘I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no . .
CitedSim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice. . .
CitedCordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) CA 1984
A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was . .
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedWelsh Development Agency v Export Finance Co Ltd CA 1992
The court was asked whether a transaction relating to goods between an exporter and the defendant, as a financier, associated with sales by the exporter to third-party purchasers, amounted to a true sale by the exporter to the defendant or was . .
CitedMorin v Bonhams and Brooks Limited Bonhams and Brooks S A M CA 18-Dec-2003
The claimant had bought a vintage Ferrari motor car through the defendant auctioneers in Monaco but sought rescission after it appeared that the odometer had been altered. The auction conditions purported to exclude any description of the car. He . .
CitedLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
CitedTrafigura Beheer Bv v Kookmin Bank Co ComC 16-Jun-2006
The defendant bank had given the claimant a letter of credit, but when the goods under transport were discharged without the bills of lading,and the buyers became insolvent, the bank refused to pay. There had been proceedings in Korea, but the . .
CitedKuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
CitedSawyer v Atari Interactive Inc CA 2-Mar-2007
The claimant designed games software and complained of infringements by the defendant of licensing agreements by failing to allow audits as required.
Held: The defendant should be allowed to be heard on the standard practices for management of . .
CitedLimit (No 3) Ltd and others v PDV Insurance Company CA 11-Apr-2005
There had been substantial oil leaks in Venezuela, which had been insured and then re-insured in London. Permission had been given to serve the defendant out of the jurisdiction, but that permission had been set aside. The claimant now appealed.
CitedNovus Aviation Ltd v Onur Air Tasimacilik As CA 27-Feb-2009
The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .
CitedMujur Bakat Sdn Bhd and Another v Uni Asia General Insurance Berhad and Others ComC 18-Mar-2011
Eder J said: ‘in considering whether or not England is the most appropriate forum, it is necessary to have in mind the overall shape of any trial and, in particular what are, or what are at least likely to be, the issues between the parties and . .
CitedSim v Robinow 1892
The task of the court in deciding jurisdiction is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice. . .
CitedDistiller’s Co (Biochemicals) Ltd v Thompson PC 19-Jan-1971
(Australia) There had been a negligent failure in New South Wales to warn a pregnant woman of the dangers of taking the drug thalidimide.
Held: When looking at jurisdiction to hear a complaint of a tort, the court should look to where in . .
CitedDiamond v Bank of London and Montreal Ltd CA 1979
Fraudulent and negligent misrepresentations were made by telephone and telex in Nassau to Mr Diamond in London. Donaldson J had held that the tort of fraudulent misrepresentation was committed in Nassau when the telexes were sent and from where the . .
CitedCordoba Shipping Co Ltd v National State Bank, Elizabeth, New Jersey (The Albaforth) CA 1984
A negligent misrepresentation was made in a telex sent from the United States but received and acted upon in England. The judge had set aside leave to serve the document out of the jurisdiction.
Held: The appeal succeeded. The transmission was . .
CitedRoerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedAK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
CitedBerezovsky v Forbes Inc and Michaels; Glouchkov v Same HL 16-May-2000
Plaintiffs who lived in Russia sought damages for defamation against an American magazine with a small distribution in England. Both plaintiffs had real connections with and reputations in England. A judgment in Russia would do nothing to repair the . .

Cited by:

CitedPrest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
CitedOPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
CitedVedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company, Jurisdiction

Leading Case

Updated: 27 November 2022; Ref: scu.470799

Brown and Another v Bennett and Others: CA 1 Dec 1998

Morritt LJ discussed the ‘corporate opportunitycases’: ‘Those are cases in which a beneficial commercial opportunity comes the company’s way and forms knowledge owned or possessed by the directors as agents for the company. Those directors then seek to use that knowledge or opportunity for themselves and are subsequently held to be constructive trustees of it and of its fruits for the company whence they took it.’ As to Cook v Deeks: ‘ . . . it seems to me that in cases such as that there is a distribution or a disposal of the property of the company in breach of trust.’

Judges:

Morritt, Aldous, Hutchinson LJ

Citations:

[1998] EWCA Civ 1881, [1999] 1 BCLC 649, [1999] 1 BCLC 649

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedBarnes v Addy 12-Feb-1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .
CitedCook v Deeks and Hinds PC 23-Feb-1916
Company Directors not free to prefer Own Interests
Deeks and Hinds were the directors of a construction company. They negotiated a lucrative construction contract with the Canadian Pacific Railway. During the negotiations, they decided to enter into the contract personally, on their own behalves, . .

Cited by:

CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 27 November 2022; Ref: scu.145360

Smith v Croft: ChD 1986

Walton J was concerned with two appeals from the Master. The first appeal was from an order made ex parte ordering the company to indemnify the claimant against costs. The appeal against that order was allowed, and Walton J decided that there was so little substance in the claim that no indemnity was appropriate. The second appeal was against an order permitting the claimants to tax their bills at intervals, without waiting for the outcome of the action.
Walton J expressed concern at the implications of a minority shareholder being permitted to litigate at the expense of the company. He said: ‘It is, of course, not for me to question the correctness of the decision of the Court of Appeal in Wallersteiner v Moir (No. 2), but I may observe that the justice of an order which may throw upon a company which, in the event, is proved to have no cause of action whatsoever against the other defendants, who may prove to be completely blameless, the entire costs of an action which it did not wish to be prosecuted, is extremely difficult to comprehend. The real injustice of the situation lies in the encouragement which the Court of Appeal gave to the application for such an order being made at the commencement of the action, at a time when, of necessity, the plaintiffs believe that they have a good case, and will with hand on heart swear that they have, and before the completion of discovery and inspection, which may well show that their beliefs, though honestly enough held, are not in fact well founded. It is to be observed that in Wallersteiner v Moir (No. 2) the application was made at a late stage in the proceedings, after Mr. Moir (who was the plaintiff by counterclaim) had already substantially succeeded, but who had no powder and shot left to finish the battle. The manifest justice of such an order in favour of a person in such a position is plain enough.’
As to the second appeal: ‘Early payment – i.e. before the conclusion of the trial – does indeed impose an additional liability. That may become necessary: if, for example, the plaintiff is a person who literally has no resources of his own, then it may well be that an order for interim payment should be made in order to ensure that the action proceeds at all. Without the supplementary order, the original order may stand in danger of being stultified.
It therefore appears to me that in order to hold the balance as fairly as may be in the circumstances between plaintiffs and defendants, it will be incumbent on the plaintiffs applying for such an order to show that it is genuinely needed, i.e. that they do not have sufficient resources to finance the action in the meantime. If they have, I see no reason at all why this extra burden should be placed upon the company.’

Judges:

Walton J

Citations:

[1986] 1 WLR 580, [1986] 2 All ER 551, [1986] BCLC 207

Jurisdiction:

England and Wales

Citing:

CitedWallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .

Cited by:

See AlsoSmith v Croft (No 2) 1987
A registered shareholder who is absolute beneficial owner can vote as he pleases, subject only to rather imprecise constraints imposed by company law.
It is essential to the exception to the rule in Foss v Harbottle that the alleged wrongdoing . .
See AlsoSmith v Croft (No 3) ChD 1987
Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff . .
CitedIesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 November 2022; Ref: scu.551035

Smith v Croft (No 3): ChD 1987

Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff being improperly prevented from bringing these proceedings on behalf of the company?’ If it is an expression of the corporate will of the company by an appropriate independent organ that is preventing the plaintiff from prosecuting the action he is not improperly but properly prevented and so the answer to the question is, ‘No’. The appropriate independent organ will vary according to the constitution of the company concerned and the identity of the defendants who will in most cases be disqualified from participating by voting in expressing the corporate will.
Finally on this aspect of the matter I remain unconvinced that a just result is achieved by a single minority shareholder having the right to involve a company in an action for recovery of compensation for the company if all the other minority shareholders are for disinterested reasons satisfied that the proceedings will be productive of more harm than good. If Mr. Potts’ argument is well founded once control by the defendants is established the views of the rest of the minority as to the advisability of the prosecution of the suit are necessarily irrelevant. I find that hard to square with the concept of a form of pleading originally introduced on the ground of necessity alone in order to prevent a wrong going without redress.’

Judges:

Knox J

Citations:

[1987] BCLC 355

Jurisdiction:

England and Wales

Citing:

CitedFoss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .
See AlsoSmith v Croft ChD 1986
Walton J was concerned with two appeals from the Master. The first appeal was from an order made ex parte ordering the company to indemnify the claimant against costs. The appeal against that order was allowed, and Walton J decided that there was so . .

Cited by:

CitedIesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 November 2022; Ref: scu.551064

Roberts and Another v Revenue and Customs: FTTTx 26 Apr 2011

National Insurance Contributions; failure by limited company to pay contributions; Personal Liability Notice served on director; whether failure to pay attributable to neglect on the part of directors; Social Security Administration Act 1992 s 121CandD; Appeal dismissed.

Citations:

[2011] UKFTT 268 (TC)

Links:

Bailii

Statutes:

Social Security Administration Act 1992 121C

Jurisdiction:

England and Wales

Taxes – Other, Company

Updated: 26 November 2022; Ref: scu.443006

In re Regents Canal Ironworks Co: 1875

Costs incurred by liquidators in realising charged assets are payable ahead of the debenture holder’s claims. As the debenture-holder is entitled to the proceeds, it is right that he should pay the cost of realisation.

Judges:

James LJ

Citations:

(1875) 3 Ch D 411

Jurisdiction:

England and Wales

Cited by:

CitedBuchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 November 2022; Ref: scu.194246

Office of Fair Trading and others v IBA Health Limited: CA 19 Feb 2004

The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties appealed.
Held: The Tribunal had misdirected itself as to one test. The statutory test required the OFT to believe that the merger ‘may be’ expected to result in a substantial lessening in competition, not that such a belief might arise in the future. On the other hand, the OFT had first to form a relevant belief – a suspicion was insufficient. That belief must be reasonable and objectively based. The degree of likelihood expected must amount to an expectation that ‘it is or may be the case that’ the merger may be a ‘relevant merger’ for the Act.
Carnwath LJ said: ‘the CAT was right to observe that their approach should reflect the ‘specific context’ in which they had been created as a specialised tribunal (paras 220); but they were wrong to suggest that this permitted them to discard established case law relating to ‘reasonableness’ in administrative law, in favour of the ‘ordinary and natural meaning’ of that word (para 225). Their instinctive wish for a more flexible approach than Wednesbury would have found more solid support in the textbook discussions of the subject, which emphasise the flexibility of the legal concept of ‘reasonableness’ dependent on the statutory context (see de Smith para 13-055ff ‘The intensity of review’; cf Wade and Forsyth, p 364ff ‘The standard of reasonableness’, and the comments of Lord Lowry in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 765ff).
Thus, at one end of the spectrum, a ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political judgment’ (de Smith para 13-056-7). Examples are R v Secretary of State, Ex p Nottinghamshire County Council [1986] AC 240, and R v Secretary of State, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521, where the decisions related to a matter of national economic policy, and the court would not intervene outside of ‘the extremes of bad faith, improper motive or manifest absurdity’ ([1991] 1 AC, per Lord Bridge of Harwich, at pp 596-597). At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with ‘absurdity’ or ‘perversity’, and a ‘lower’ threshold of unreasonableness is used . . A further factor relevant to the intensity of review is whether the issue before the Tribunal is one properly within the province of the court. As has often been said, judges are not ‘equipped by training or experience or furnished with the requisite knowledge or advice’ to decide issues depending on administrative or political judgment: see Ex p Brind [1991] 1 AC at 767, per Lord Lowry. On the other hand where the question is the fairness of a procedure adopted by a decision-maker, the court has been more willing to intervene: such questions are to be answered not by reference to Wednesbury unreasonableness, but ‘in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge” (R v Panel on Take-overs and Mergers, Ex p Guinness plc [1990] 1 QB 146, 184, per Lloyd LJ).’

Judges:

Lord Justice Mance VC, Lord Justice Carnwath

Citations:

[2004] EWCA Civ 142, Times 25-Feb-2004, Gazette 18-Mar-2004, [2004] 4 All ER 1103, [2004] ICR 1364

Links:

Bailii

Statutes:

Enterprise Act 2002 33(1)

Jurisdiction:

England and Wales

Citing:

CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedSecretary of State for Education and Science v Tameside Metropolitan Borough Council HL 21-Oct-1976
An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
CitedRegina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA 14-Mar-1986
Weighing Interest of Seeker of Judicial Review
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedRegina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993
One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance . .
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
CitedRegina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
CitedRegina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
CitedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
CitedCouncil 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 . .
CitedRegina v Panel on Takeovers and Mergers ex parte Guinness Plc CA 1989
The court asked about the standard of decision making at which a court could intervene: ‘Irrationality, at least in the sense of failing to take account of relevant factors or taking account of irrelevant factors, is a difficult concept in the . .
CitedRe Poyser and Mills’ Arbitration 1963
The section at issue imposed a duty upon a tribunal to which the Act applies or any minister who makes a decision after the holding of a statutory inquiry to give reasons for their decision, if requested. A record of the reasons for a decision must . .
CitedRegina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .
CitedRegina v Director General of Telecommunications, Ex P Cellcom Ltd and others QBD 7-Dec-1998
The Director General of Telecommunications can quite properly use his powers and discretion to ensure competition in telecommunications by the granting and withholding of licences. He may take account of economic factors in making such a decision. . .
CitedMoyna v Secretary of State for Work and Pensions HL 31-Jul-2003
The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .

Cited by:

CitedT-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Company, Commercial

Updated: 26 November 2022; Ref: scu.193916

In re Magi Capital Partners LLC: 2003

The court stayed a petition under the section to allow for an arbitration.

Citations:

[2003] EWHC 2790 (Ch)

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

CitedExeter City AFC Ltd v Football Conference Ltd and Another ChD 29-Jan-2004
The football club played in a league operated by the first defendant, which sought a stay of an application for relief from unfair prejudice, saying their was a binding obligation for the complaint to be referred to arbitration.
Held: ‘the . .
Lists of cited by and citing cases may be incomplete.

Company, Arbitration

Updated: 26 November 2022; Ref: scu.193480

Smith v Croft (No 2): 1987

A registered shareholder who is absolute beneficial owner can vote as he pleases, subject only to rather imprecise constraints imposed by company law.
It is essential to the exception to the rule in Foss v Harbottle that the alleged wrongdoing is incapable of lawful ratification.

Citations:

[1988] Ch 114, [1987] 3 All ER 909, (1987) 3 BCC 207

Jurisdiction:

England and Wales

Citing:

See AlsoSmith v Croft ChD 1986
Walton J was concerned with two appeals from the Master. The first appeal was from an order made ex parte ordering the company to indemnify the claimant against costs. The appeal against that order was allowed, and Walton J decided that there was so . .
CitedFoss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .

Cited by:

CitedMulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 November 2022; Ref: scu.185416

Re Lands Allotment Company: CA 1894

A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands or under their control, and if they misapply them they commit a breach of trust.
The court contrasted the conduct of two directors (one of whom, Mr Brock, was also chairman) in determining their responsibility for an ultra vires investment made by the company. Neither was present at the meeting at which the investment had been approved. Attendance at a later meeting at which the minutes of that meeting were confirmed was held to be insufficient to make either director liable. On the other hand statements made by Mr Brock showing he had taken an active part in the decision to make the investment were sufficient to hold him responsible for it. However the other director had been ‘away on the sea’ and ‘had nothing to do with the transaction at all’ which was ‘past praying for’ on his return. In a case of a company director being treated as a trustee within the limitation provisions of ss1(3) and 8(1) of the Trustee Act 1888 in respect of a claim that unauthorised investments had caused loss to the company. The court recognised the trustee-like nature of a director’s duties as very relevant to the statutory limitation periods for actions by beneficiaries against express trustees for breach of trust and for the recovery of trust property, whether those periods are applied directly or by analogy. In consequence of the fiduciary character of their duties the directors of a limited company are treated as if they were trustees of those funds of the company which are in their hands or under their control, and if they misapply them they commit a breach of trust.
Directors are not regarded as trustees merely by virtue of their office; but they are treated as trustees ‘of money which comes to their hands or which is actually under their control’ (per Lindley LJ); or ‘they are only trustees qua the particular property which is put into their hands or under their control’ (per Kay LJ).

Judges:

Lindley LJ and Kay L JJ

Citations:

[1894] 1 Ch 616

Statutes:

Trustee Act 1888 1(3) 8(1)

Jurisdiction:

England and Wales

Cited by:

CitedDEG-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 . .
CitedEquitable Life Assurance Society v Bowley and others ComC 17-Oct-2003
The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out.
Held: It was no longer good law that directors might leave the conduct of the company’s . .
CitedBelmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedHolland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .
Lists of cited by and citing cases may be incomplete.

Company, Limitation, Equity

Updated: 26 November 2022; Ref: scu.187430

In Re Land and Property Trust Co Plc (No 2): CA 16 Feb 1993

The judge was wrong to refuse an adjournment when he had insufficient evidence before him properly to make his decision, and when a costs order was sought against the company directors personally in respect of an application for the winding up of a company. The directors had not been party to the early part of the proceedings and when told of the application for costs requested the opportunity to adjourn so that they could prepare a case.

Citations:

Times 16-Feb-1993

Jurisdiction:

England and Wales

Litigation Practice, Insolvency, Company

Updated: 26 November 2022; Ref: scu.81996

Homes of England Ltd v Horsham Holdings Ltd and Others: ChD 4 May 2020

The Petitioner sought an interim order restraining the Respondents until trial of its petition under s.994 of the Companies Act 2006 from paying out the sum of pounds 500,000, currently held in a solicitors’ client account, to any of the Respondents other than the First Respondent. It also seeks a further order preventing the First Respondent from disposing of that sum otherwise than to the Petitioner.

Judges:

Mr Peter Knox QC

Citations:

[2020] EWHC 1175 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 994

Jurisdiction:

England and Wales

Company

Updated: 26 November 2022; Ref: scu.650762

Hood v Anchor Line (Henderson Bros) Ltd: HL 1 Jul 1918

An English court may exercise its jurisdiction in personam over the liquidator to enforce the contract between the chargee and the company, and may require the liquidator to pay the proceeds to the chargee, The Scottish courts did not recognise the validity of a floating charge on a company’s assets.
Whether term brought to notice of party.

Judges:

Lord Dunedin

Citations:

[1918] AC 837, [1918] UKHL 2, (1918) 2 SLT 118, 1918 SC (HL) 143

Links:

Bailii

Jurisdiction:

Scotland

Citing:

CitedHood v Anchor Line (Henderson Brothers) Ltd SCS 25-Feb-1916
Court of Session Inner House Second Division ‘Notice. – This ticket is issued to and accepted by the passenger subject to the following conditions’
In an action at the instance of a passenger on an Atlantic steamer against the shipping company . .
Appeal fromHood v Anchor Line (Henderson Brothers) Ltd SCS 31-Oct-1917
Court of Session Inner House Second Division – Carriage of Passengers – Conditions on Ticket Limiting Liability of Carrier – Notice of Conditions – A passenger on a trans-Atlantic steamer, who brought an action against the owners thereof for damages . .

Cited by:

CitedTICC Limited v Cosco (UK) Limited CA 5-Dec-2001
The claimants sought to have incorporated by notice into a contract of bill of lading, the terms of a freight surcharge. Notice had been given to the shipping agents in Hong Kong only. The shippers claimed the surcharge under the 1992 Act, saying . .
CitedInterfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
CitedWhite v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, Negligence, Personal Injury

Updated: 26 November 2022; Ref: scu.279677

Re Easy-Dial Ltd: 16 Sep 2003

On an application for a winding up order, the court accepted undertakings on the basis of which the Secretary of State sought and was given leave to withdraw his petition.

Judges:

Neuberger J

Citations:

Unreported, 16th September 2003

Jurisdiction:

England and Wales

Cited by:

CitedIn the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986 ChD 19-Mar-2004
The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 November 2022; Ref: scu.196721

Seawind Tankers Corporation v Bayoil SA: CA 12 Oct 1998

Although a company admitted a debt, it was nevertheless right to set aside a petition for winding up under that debt, where the company had an unquantified but greater counterclaim within the same proceedings, even if that claim could not presently be pursued. Whilst the dismissal of a petition based on a disputed debt is not a matter of discretion, the like treatment of a petition based on a cross-claim can only be a matter of discretion. The cross-claim must, however, be shown to be ‘genuine and serious or, if you prefer, one of substance.

Judges:

Nourse, Ward, Mantell LJJ

Citations:

Times 12-Oct-1998, [1999] 1 WLR 147, [1998] EWCA Civ 1364, [1999] 1 BCLC 62, [1999] 1 All ER 374, [1999] 1 Lloyd’s Rep 211, [1998] BCC 988

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedPopely v Popely ChD 25-Jul-2003
The claimant appealed refusal to set aside a statutory demand served by the defendant. The parties had become embroiled in criminal proceedings and the defendant sought recovery of assets from the claimant. In those proceedings a costs order had . .
Applied by analogyPopeley v Popeley CA 30-Apr-2004
The creditor appealed an order setting aside a statutory demand.
Held: The demand had been issued to enforce a costs order when in related matters an action was pending against the creditor and where the debt upon which the demand was based . .
AppliedPopely v Popely CA 30-Apr-2004
The expression ‘cross-demand’ in rule 6.5(4)(a) did not imply any kind of procedural or juridical relationship to the debt subject to the statutory demand. All it meant was that the demand was one that went the other way, i.e. was a demand by the . .
MentionedBryce Ashworth v Newnote Ltd CA 27-Jul-2007
The appellant challenged a refusal to set aside a statutory demand, in respect of his director’s loan account with the respondent company, saying the court should have accepted other accounts to set off against that debt.
Held: A statutory . .
CitedDennis Rye Ltd v Bolsover District Council CA 6-May-2009
Right to raise claim against rates insolvency
The ratepayer company sought leave to appeal and to challenge the use of insolvency proceedings to recover council tax. It said that it had a valid counterclaim.
Held: Leave was refused. ‘A company is not prevented from raising a cross-claim . .
CitedRevenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 25 November 2022; Ref: scu.81740

Secretary of State for Trade and Industry v Richardson and Another: ChD 16 May 1997

A company director may be disqualified on wider ground than merely for specific contraventions within any list, including having given a preference to a creditor bank.

Citations:

Times 16-May-1997, Gazette 21-May-1997

Statutes:

Company Directors Disqualification Act 1985 9(8)

Jurisdiction:

England and Wales

Company

Updated: 25 November 2022; Ref: scu.89144

Alexander Speirs, Andrew Blackburn, and Andrew Syme, James Dunlop’S Trustees v Thomas and Wm Dunlop and Co, Trustees for The Creditors of John Carlyle and Co: HL 9 Mar 1777

Ranking – Society – Company and Individual Estate – Principles of Ranking.- (1) Held that a company are entitled to rank on an individual partner’s separate estate, pari passu with the creditors of that separate estate, for the whole amount of debts owing by the company after deducting any dividends that may have been paid to the company creditors. But, (2) Held in the House of Lords, that where, after a dividend on an estate was declared, and most of the creditors paid, a new claim was lodged for the first time on the estate, that such claim will not be allowed to disturb or affect the dividend paid before any notice was received of such claim.

Citations:

[1777] UKHL 2 – Paton – 437, (1777) 2 Paton 437

Links:

Bailii

Jurisdiction:

Scotland

Company, Insolvency

Updated: 25 November 2022; Ref: scu.562001

Dalton v The Midland Counties Railway Company: 22 Apr 1853

The plaintiff, a married woman, bought, with moneys earned by her partly before and partly during coverture, railway stock, in her own name, and was registered as the proprietor thereof.
Held: that, inasmuch as she might be joined with her husband in an action against the company for dividends due upon the stock, she might (subject to be met by a plea in abatement) maintain an action for the same in her own name.

Citations:

[1853] EngR 434, (1853) 13 CB 474, (1853) 138 ER 1284

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 25 November 2022; Ref: scu.294420

Facia Footwear Ltd v Hinchliffe: 1998

A director owes duties to the company’s creditors.

Citations:

[1998] BCLC 218

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 25 November 2022; Ref: scu.188617

In Re Dawson Print Group Ltd: 1987

Proof of dishonesty in a company director is not a strict requirement before a disqualification can be ordered. Hoffmann J said: ‘There must, I think, be something about the case, some conduct which if not dishonest is at any rate in breach of standards of commercial morality, or some really gross incompetence which persuades a court that it would be a danger to the public if he were to be allowed to continue to be involved in the management of companies, before a disqualification order is made.’

Judges:

Hoffmann J

Citations:

[1987] 3 BCC 322

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 25 November 2022; Ref: scu.188621

Secretary of State for Trade and Industry v Rogers: 1996

If fraud is to be alleged against a company director in disqualification proceedings, the allegation must be distinctly alleged and as distinctly proved.

Citations:

[1996] 1 WLR 1569, [1996] 2 BCLC 513

Statutes:

Company Directors Disqualificatin Act 1985

Jurisdiction:

England and Wales

Citing:

developedIn Re Carecraft Construction Co Ltd ChD 13-Oct-1993
A court must hear evidence before disqualifying directors. Though the Director and the Secretary of State might reach an agreement as to what should happen, they could not displace the court in deciding what order should be made, and in making that . .

Cited by:

CitedThe Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.188622

In re Calmex Ltd: 1989

The court could exercise a supervisory jurisdiction over the registrar of companies, and enforce his duties through judicial review. The jurisdiction was not general, but one exercising normal public law jurisdiction. In particular, the court has power to order the Registrar of Companies to remove from the register a winding-up order which ought not to have been made and was later rescinded.

Judges:

Hoffmann J

Citations:

[1989] 1 All ER 485, [1989] BCLC 299

Jurisdiction:

England and Wales

Cited by:

CitedIgroup Ltd v Ocwen (an unlimited company) and Others ChD 23-Oct-2003
The claimant had submitted debentures and forms to the registrar of companies for registration. The documents submitted contained more information than was necessary, and the extra information was commercially sensitive. It sought rectification of . .
CitedIn re a Company (No 007466 of 2003) ChD 19-Jan-2004
The company had published and filed its accounts, but sought to file revised accounts. The Registrar of companies refused permission, and the company asked the court to require the registrar to allow it by virtue of the court’s inherent . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.188708

In re Vocam Europe Ltd: 1998

The applicant was entitled to stay an application for a winding up of the company where it had been agreed that such a dispute would be referred to arbitration. The claimant had argued that a stay should not be given because an arbitrator would not have the same powers available to him.

Citations:

[1998] BCC 396

Jurisdiction:

England and Wales

Cited by:

CitedExeter City AFC Ltd v Football Conference Ltd and Another ChD 29-Jan-2004
The football club played in a league operated by the first defendant, which sought a stay of an application for relief from unfair prejudice, saying their was a binding obligation for the complaint to be referred to arbitration.
Held: ‘the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.193479

Meekins v Henson: 1964

The section in the 1890 Act produced ‘a necessary equation of a partnership firm with employers for this purpose [vicarious liability]’. Vicarious liability is a ‘secondary liability as the liability of one person for the act of another who is acting in the course of his employment or as agent for him . . it equates the position of a partner in those respects with that of an employer or a principal.’

Judges:

Winn J

Citations:

[1964] 1 QB 472

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

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

Vicarious Liability, Company

Updated: 25 November 2022; Ref: scu.193869

A Best Floor Sanding Pty Ltd v Skyr Australian Pty Ltd: 1999

(Australia) The right of a contributor to a company to take his application for a winding up of the company to court could not be ousted by agreement btween the parties.

Judges:

Warren J

Citations:

[1999] VSC 170

Jurisdiction:

Australia

Cited by:

CitedExeter City AFC Ltd v Football Conference Ltd and Another ChD 29-Jan-2004
The football club played in a league operated by the first defendant, which sought a stay of an application for relief from unfair prejudice, saying their was a binding obligation for the complaint to be referred to arbitration.
Held: ‘the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.193477

Anderson v Hogg: IHCS 14 Dec 2001

The appellant sought an order under the section for repayment to the company of sums paid to a director by way of extra redundancy payments. He said the payments were improper. His application had been refused, in part because he had not chosen the more direct method of asking the company to seek repayment directly, and also because the applicant had not shown the necessary element of unfairness, over and above unlawfulness.
Held: The existence of the alternate and more straightforward method of recouping the payment did not invalidate the request for this order. It was clear that the action was not unavailable, and that the payment had not been approved by the company as a whole. Nevertheless the jurisdiction should be exercised only on established principles of equity. Here the order should be granted.

Judges:

Lord Coulsfield, Lord Hamilton and Lord Prosser

Citations:

Times 22-Jan-2002

Links:

ScotC

Statutes:

Companies Act 1985 459

Jurisdiction:

Scotland

Citing:

CitedLowe v Fahey 1996
Where there has been material misconduct, even in the shape of a single act, the primary remedy is under section 459, not by a shareholder’s derivative action. . .
CitedO’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
ApprovedKaneria, Kaneria v Patel, Kaneria, Kaneria, Kaneria, Kaneria, Guidezone Ltd Sub Nom In The Matter Of Guidezone Ltd (2000) 13-Jul-2000
cw The petitioners’ case was that they had a legitimate expectation that the company’s business would be sold, either by virtue of an agreement to that effect or at their request, was not made out on the facts. . .

Cited by:

CitedClark v Cutland CA 18-Jun-2003
One director discovered that his co-director had withdrawn substantial sums from the company. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.167419

Nelson v Nelson: 9 Nov 1995

High Court of Australia – McHugh J spoke of the so called ‘reliance rule’: ‘The [reliance] rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the relevant legislation or the question whether the sanctions imposed by the legislation sufficiently protect the purpose of the legislation. Regard is had only to the procedural issue; and it is that issue and not the policy of the legislation or the merits of the parties which determines the outcome. Basing the grant of legal remedies on an essentially procedural criterion which has nothing to do with the equitable positions of the parties or the policy of the legislation is unsatisfactory, particularly when implementing a doctrine which is founded on public policy.’

Judges:

Deane, Dawson, Toohey, McHugh, Gummoww JJ

Citations:

(1995) 184 CLR 538, [1995] HCA 25, (1995) 132 ALR 133, (1995) 70 ALJR 47, [1996] ANZ Conv R 280, (1995) 19 Leg Rep 14

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Company

Leading Case

Updated: 25 November 2022; Ref: scu.566001

British Midland Tool Limited v Midland International Tooling: ChD 2003

Four former employees had set out to create a business in competition with the claimant. They had agreed to use unlawful means to do so.
Held: A director who decided to set up a competing business and took preparatory steps could rely upon the public interest in favouring competitive business as an answer to allegations of breach of fiduciary duty. He must end to his fiduciary obligation by resigning his directorship. Until he has done so, preparatory steps taken in pursuance of an irrevocable intention to compete would generally amount to a breach of his fiduciary obligations as director.
Hart J said: ‘The claimant undoubtedly suffered some damage in the present case as a result of the secession of the Tamworth Four together with a large part of the workforce. There is also no doubt, in our judgment, that such damage was not only foreseeable but actually foreseen . . By virtue of that fact they may be said, for the purpose of the tort, to have intended that damage.’

Judges:

Hart J

Citations:

[2003] 2 BCLC 523

Jurisdiction:

England and Wales

Cited by:

CitedIS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedHelmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 25 November 2022; Ref: scu.194586

Andrewes v Garstin: 1861

The plaintiff sued for breach of an agreement to enter into a partnership with the defendant, who pleaded that previously the plaintiff had carried on trade in partnership with another person, and that the defendant made the agreement on the faith and under the belief that the plaintiff had up to that time acted with honesty towards his previous partner. But after the making of the agreement the defendant discovered that the plaintiff had before the time of making the agreement acted with fraud and dishonesty towards his partner, and did not disclose it.
Held: The plea was no answer to the action. The defendants arguments would have been addressed with more plausibility if the plea had been a little more specific. There was no suggestion of fraud on the defendant and as to the rest it was much too vague and uncertain.

Judges:

Erle CJ

Citations:

(1861) 10 CB (NS) 444

Jurisdiction:

England and Wales

Cited by:

CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 November 2022; Ref: scu.248009

Dumford Trading Ag v Oao Atlantrybflot: CA 26 Jan 2005

an appeal against summary judgment under CPR Part 24 for some pounds 1,890,000 under two contracts of guarantee.

Judges:

Lord Justice Rix Lord Justice Johnathan Parker Lord Justice Brooke

Citations:

[2005] EWCA Civ 24

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoDumford Trading Ag v Oao Atlantrybflot CA 17-Sep-2004
Applications for suspension of enforcement pending appeal and similar. . .

Cited by:

Main JudgmentDumford Trading Ag v OAO Atlantrybflot (Costs) CA 26-Jan-2005
Costs order upheld – leave to appeal to the House of Lords refused. . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 24 November 2022; Ref: scu.221752

East India Co v Sandys (or Sands); The Case of Monopolies: 1602

It is the nature of a patent to enable persons acting as a corporation ‘to enjoy and apply to trade all the privileges derived from being a body corporate.

Citations:

(1683-5) 10 State tr 371, Skin 132, 2 Show 366, 90 ER 62, (1602) 11 Co Rep 84b

Jurisdiction:

England and Wales

Cited by:

CitedOakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 November 2022; Ref: scu.222831

Practice Statement (Companies Schemes of Arrangement): 2002

Citations:

[2002] 1 WLR 134

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 24 November 2022; Ref: scu.220246

Ex parte Bennett: 1805

(Year) The rule against self-dealing applies even if the fiduciary duty acts in the purchase only as an agent for others.

Citations:

10 Ves 381

Jurisdiction:

England and Wales

Cited by:

CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 November 2022; Ref: scu.220726

Re Hoicrest Ltd: 2000

Citations:

[2000] 1 WLR 414

Statutes:

Companies Act 1985 359

Jurisdiction:

England and Wales

Cited by:

CitedArcher and Watkins v Registrar General and Another PC 24-Jun-2004
(The Bahamas) The claimants challenged the way the respondent had allowed a company to alter its register of shareholders to their detriment.
Held: The responsibility for maintaining the share register rested on the company and its officers, . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 November 2022; Ref: scu.198487

In re Moseley-Green Coal and Coke Co Ltd, Ex parte Barrett: 1865

Mr Barrett owed the company money on his partly-paid shares for which calls were made after it went into insolvent liquidation. He had also guaranteed the company’s liability for the purchase price of a coal mine, for which the vendor held security in the form of a mortgage and the company’s promissory note. After the winding up Mr Barrett’s sister paid off the vendor and took over the mortgage and promissory note. Mr Barrett then entered into an arrangement which was treated as a payment of the company’s debt and he took over the promissory note.
Held: He was entitled to set off the debt on the promissory note against his liability to pay calls on his shares.

Judges:

Lord Westbury LC

Citations:

(1865) 12 LT (NS) 193

Jurisdiction:

England and Wales

Cited by:

CitedIn re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
DistinguishdIn re A Debtor (No 66 of 1955), Ex parte The Debtor v Trustee of Waite (A Bankrupt) CA 2-Jan-1956
Waite owed the debtor andpound;101 for goods sold and delivered. He was bankrupted, having previously guaranteed the debtor’s overdraft and deposited the deeds of his property as security. Waite’s trustee paid the bank andpound;133 out of the . .
CitedSecretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 24 November 2022; Ref: scu.196877

Re Vehicle Options Ltd: 21 Feb 2002

The court accepted undertakings with regard to the conduct of a franchised vehicle-leasing broker. The Secretary of State consented to the order.

Judges:

Park J

Citations:

Unreported, 21 February 2002

Jurisdiction:

England and Wales

Cited by:

CitedIn the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986 ChD 19-Mar-2004
The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 November 2022; Ref: scu.196720

Brostoff v Clarke Kenneth Leventhal: 11 Mar 1996

No partnership between supposed partners where genuinely separate businesses were carried on.

Judges:

Dyson J

Citations:

Unreported, 11 March 1996

Jurisdiction:

England and Wales

Cited by:

CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 November 2022; Ref: scu.195995

Mayor, Constables and Company of the Merchants of the Staple v Bank of England: 1883

The sealing of a deed prima facie imported not only due execution but also delivery. ‘The affixing the seal is not enough; there must be delivery of the deed also . . . Prima facie, putting the seal imports delivery; yet, if it be intended otherwise, it is not so . . .’

Judges:

Wills J

Citations:

(1887) 21 QBD 160

Jurisdiction:

England and Wales

Cited by:

CitedBolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .
Lists of cited by and citing cases may be incomplete.

Land, Company

Updated: 24 November 2022; Ref: scu.188673

Equity and Law Life Assurance Society v Tritonia Ltd: HL 1943

Viscount Simon LC said: ‘When an appeal is argued before the House of Lords, no one has any right of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation’s behalf . . Such a rule limiting a right of audience on behalf of others to members of the English or Scottish or Northern Irish bars, secures that the House will be served by barristers or advocates who observe the rules of their profession, who are subject to a disciplinary code, and who are familiar with the methods and scope of advocacy which are followed in presenting arguments to this House’.

Judges:

Viscount Simon LC

Citations:

1943 SC (HL) 88

Jurisdiction:

Scotland

Cited by:

CitedApollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
CitedHM Secretary of State for Business Enterprise and Regulatory Reform, Re Order To Wind Up UK Bankruptcy Ltd SCS 31-Mar-2009
Outer House – Court of Session – . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 23 November 2022; Ref: scu.526002

Drake v Harvey and Others: ChD 16 Jun 2010

Family dispute about the terms on which the members of a former four-member partnership are entitled to be paid out upon their ceasing to be partners. The essential question is whether or not they are entitled to have their shares or entitlements valued on the footing of a current as opposed to a historic valuation of the farming land.

Judges:

Mann J

Citations:

[2010] EWHC 1446 (Ch), [2011] 1 All ER (Comm) 344, [2010] 2 BCLC 688, [2010] Bus LR D109, [2010] WTLR 1731

Links:

Bailii

Jurisdiction:

England and Wales

Company, Trusts

Updated: 23 November 2022; Ref: scu.418450

Maddeford v Austwick: 1826

When co-partners are negotiating between each other in relation to partnership assets, each partner must put the others in possession of all material facts with reference to the partnership assets, and not to conceal what he alone knows.

Citations:

[1826] 1 Sim 92

Jurisdiction:

England and Wales

Cited by:

CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 23 November 2022; Ref: scu.248007

Willett v Blanford: 1842

A partner continuing after a dissolution was liable to account as a fiduciary to the outgoing partner in respect of his unauthorised use for his own benefit of the assets of the partnership. The quantum of the entitlement of the Outgoing Partner in respect of the profits made by the Continuing Partner must be determined by reference to what is right and equitable between the parties in all the circumstances and in particular the extent that the profits are attributable to use of the outgoing partner’s share of the partnership assets. It is notoriously difficult to attribute a proportion of the profits of a continuing partnership to the use of the outgoing partner’s share of the partnership assets.

Judges:

Wigram VC

Citations:

(1842) 1 Hare 253, 66 ER 1027

Jurisdiction:

England and Wales

Cited by:

CitedHardip Singh Gill v Kulbir Singh Sandhu ChD 26-Jan-2005
The partnership had been dissolved. It had involved conversion of a property to be run as a nursing home. The claimant was to manage the home, and the profits would be used first to pay him a salary, and then to be divided equally. When wound up . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 23 November 2022; Ref: scu.222919

Aberdeen Rly Co v Blackie Bros: 1854

In the absence of any provision otherwise in the articles of association, a contract made by the company in which a director holds a contrary interest will be voidable at the instance of the company.

Citations:

(1854) 1 Macq 461

Jurisdiction:

England and Wales

Company

Updated: 23 November 2022; Ref: scu.219198

Secretary of State for Trade and Industry v Eastaway: CA 6 Apr 2001

Judges:

Tuckey, Rix, Arden LLJ

Citations:

[2001] EWCA Civ 763, [2003] 2 BCLC 263

Links:

Bailii

Statutes:

Company Directors Disqualificatin Act 1985

Jurisdiction:

England and Wales

Citing:

See AlsoRegina 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 . .
CitedIn Re Manlon Trading Ltd CA 22-Jun-1995
Company Director Disqualification proceedings were struck out for delay. There has to be a balance between the public interest in securing the disqualification of bad directors and the prejudice to private citizens and the people subject to the . .

Cited by:

See AlsoIn 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 . .
See AlsoSecretary 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 AlsoEastaway v The United Kingdom ECHR 20-Jul-2004
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 . .
See AlsoEastaway v Secretary of State for Trade and Industry and similar ChD 2-Mar-2006
. .
See AlsoEastaway 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.

Company

Updated: 23 November 2022; Ref: scu.201006

Sovereign Life Assurance v Dodd: 1892

‘What is the proper construction of that statute? It makes the majority of the creditors or of a class of creditors bind the minority: it exercises a most formidable compulsion upon dissentient, or would-be dissentient, creditors; and it therefore requires to be construed with care, so as not to place in the hands of some of the creditors the means and opportunity of forcing dissentients to do that which it is unreasonable to require them to do, or of making a mere jest of the interests of the minority. ‘ and ‘The word ‘class’ is vague, and to find out what is meant by it we must look at the scope of the section, which is a section enabling the court to order a meeting of a class of creditors to be called. It seems plain that we must give such a meaning to the term ‘class’ as will prevent the section being so worked as to result in confiscation and injustice, that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest. ‘

Judges:

Bowen LJ

Citations:

[1892] 2 QB 573

Statutes:

Joint Stock Companies Arrangement Act 1870

Jurisdiction:

England and Wales

Cited by:

CitedIn re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
CitedIn the Matter of Hawk Insurance Company Limited CA 23-Feb-2001
Arrangements for putting in place voluntary arrangements for companies. Discussing Sovereign Insurance: ‘When applying Bowen LJ’s test to the question ‘are the rights of those who are to be affected by the scheme proposed such that the scheme can be . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 23 November 2022; Ref: scu.197908

Secretary of State for Trade and Industry v Gash: 1997

The court considered the possible propriety of a company continuing to trade whilst insolvent: ‘The companies legislation does not impose on directors a statutory duty to ensure that their company does not trade while insolvent; nor does that legislation impose an obligation to ensure that the company does not trade at a loss. Those propositions need only to be stated to be recognised as self-evident. Directors may properly take the view that it is in the interests of the company and of its creditors that, although insolvent, the company should continue to trade out of its difficulties. They may properly take the view that it is in the interests of the company and its creditors that some loss-making trade should be accepted in anticipation of future profitability.’

Judges:

Chadwick LJ

Citations:

[1997] 1 BCLC 341

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 23 November 2022; Ref: scu.188614

Jones v Lock: 1865

A father put a cheque into the hands of his baby son of nine months saying ‘I give this to baby for himself’ and he then took back the cheque and put it away. The donor died and the cheque was found among his effects.
Held: There had been no valid gift. There was no declaration of trust and no gift.

Judges:

Lord Cranworth LJ

Citations:

(1865) LR 1 Ch App Cas 25

Jurisdiction:

England and Wales

Cited by:

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

Company, Equity

Updated: 23 November 2022; Ref: scu.183414

Baker (Liquidator of TMG Brokers Limited) v Staines and Another: ChD 23 Apr 2021

Application by the Company and its liquidator seeking declarations in relation to certain payments, pursuant to section 212 of the Insolvency Act 1986 and consequential orders against the First Respondent and the Second Respondent, both of whom were directors and shareholders of the Company.

Judges:

Insolvency and Companies Court Judge Burton

Citations:

[2021] EWHC 1006 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 22 November 2022; Ref: scu.662202