Category: Company

In Re Adbury Park Estates Ltd: ChD 2003

A shareholder applied under section 4 of the 1986 Act for disqualification orders against the liquidators of a hopelessly insolvent company.
Held: The application was refused on two grounds: first, that the applicant had no standing to bring the application and, secondly, that the application anyway had no merit.
As regards the applicant’s standing, Jacob J said: ‘The company is hopelessly insolvent. It follows that the two individuals concerned, the liquidators, are principally concerned with apportioning the company’s assets amongst the creditors. [The applicant] is not a creditor, and so to the extent that the liquidators make an error in admitting to proof, or not admitting to proof, debts, he is wholly unaffected. He cannot be a victim of any maladministration by the liquidators of their duties. In those circumstances, it is submitted that [the applicant] has no standing to make this application. I think that submission is right. It cannot be right that [the applicant] sets himself up as some kind of public prosecutor for the general interests of the public to complain about what has been done or done wrongly by these liquidators. The fact that he was a director once makes no difference. Of course, the Secretary of State, if he comes to the conclusion that there has been some sort of maladministration warranting disqualification can apply under s.4. I was told that [the applicant] has made no complaint to the Secretary of State. It was suggested that if I thought that there was sufficient to look into that I ought to adjourn the matter for the Secretary of State to make representations. Quite apart from the fact that I do not so think, such a course would be wholly unjust and wrong. If a disinterested person thinks that a liquidator’s conduct warrants disqualification, then the proper person to report it to is the Secretary of State, not to bring proceedings before the court and then ask the court to refer it to the Secretary of State.’

Judges:

Jacob J

Citations:

[2003] BCC 696

Jurisdiction:

England and Wales

Cited by:

Cited – Wood and Another v Mistry ChD 10-Jul-2012
A director’s disqualification order was sought. The order was sought on the basis of allegations of conduct as liquidator of several companies. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 20 April 2022; Ref: scu.462498

Koza Ltd and Another v Akcil and Others: CA 18 Oct 2017

Appeal as to jurisdiction in dispute over control of English registered company based in Turkey.

Judges:

Floyd, Flaux LJJ

Citations:

[2017] EWCA Civ 1609, [2018] 1 BCLC 591

Links:

Bailii

Statutes:

Regulation (EU) No 1215/2012

Jurisdiction:

England and Wales

Citing:

Appeal from – Koza Ltd and Another v Akcil and Others ChD 21-Dec-2016
. .

Cited by:

See Also – Koza Ltd and Another v Akcil and Others ChD 16-Nov-2017
. .
See Also – Koza Ltd and Another v Akcil and Others ChD 26-Feb-2018
Application to add party out of jurisdiction and for service . .
See Also – Koza Ltd and Another v Akcil and Others ChD 19-Jun-2018
Struggle for control of company . .
See Also – Koza Ltd and Another v Akcil and Others CA 23-May-2019
Whether proposed payments would be in breach of undertakings given as to dealing with assets in impending litigation. . .
See Also – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company, European

Updated: 18 April 2022; Ref: scu.597404

Koza Ltd and Another v Akcil and Others: ChD 19 Jun 2018

Struggle for control of company

Judges:

Morgan J

Citations:

[2018] EWHC 1612 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Koza Ltd and Another v Akcil and Others CA 18-Oct-2017
Appeal as to jurisdiction in dispute over control of English registered company based in Turkey. . .
See Also – Koza Ltd and Another v Akcil and Others ChD 21-Dec-2016
. .
See Also – Koza Ltd and Another v Akcil and Others ChD 16-Nov-2017
. .
See Also – Koza Ltd and Another v Akcil and Others ChD 26-Feb-2018
Application to add party out of jurisdiction and for service . .

Cited by:

Appeal from – Koza Ltd and Another v Akcil and Others CA 23-May-2019
Whether proposed payments would be in breach of undertakings given as to dealing with assets in impending litigation. . .
At first Instance – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 April 2022; Ref: scu.618980

Meridian Global Funds Management Asia Ltd v The Securities Commission Co: PC 26 Jun 1995

(New Zealand) Lord Hofmann said: ‘There is in fact no such thing as the company as such, no ‘ding an sich’, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company. The company’s primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person ‘himself’, as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company? One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, ie if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.’

Citations:

[1995] UKPC 26, [1995] 1 AC 500

Links:

Bailii

Jurisdiction:

New Zealand

Cited by:

Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – A Ltd and Othersi, Regina v CACD 28-Jul-2016
The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act . .
Cited – X v Kuoni Travel Ltd SC 24-Jul-2019
The claimant had been raped by a member of staff at the hotel in Sri Lanka booked through the respondent travel company. She now appealed from dismissal of the claim.
Held: Questions were referred to the ECJ, namely: ‘(1) Where there has been . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 April 2022; Ref: scu.442331

Tesco Supermarkets Ltd v Nattrass: HL 31 Mar 1971

Identification of Company’s Directing Mind

In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the expression ‘act or default’ in section 23 and in paragraph (a) of section 24(1) the word ‘act’ is wide enough to include any physical act of the other person which is causative of the offence. But the use of the word ‘default’ instead of the neutral expression ‘omission’ connotes a failure to act which constitutes a breach of a legal duty to act. A legal duty to act may arise independently of any contract or it may be a duty owed to another person arising out of a contract with him.’ The defendants were the company in the sense that any offences committed by them in relation to the affairs of the company would be capable of being treated as offences committed by the company itself.
Lord Reid said: ‘Where a limited company is the employer difficult questions do arise in a wide variety of circumstances in deciding which of its officers or servants is to be identified with the company so that his guilt is the guilt of the company.
I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.’ and
‘. . . Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn. Lennard’s case [1915] AC 705 was one of them.’
Viscount Dilhorne set out the test: ‘a person who is in actual control of the operations of a company or of part of them and who is not responsible to another person in the company for the manner in which he discharges his duties in the sense of being under his orders’
Lord Diplock said: ‘Consumer protection, which is the purpose of statutes of this kind, is achieved only if the occurrence of the prohibited acts or omissions is prevented. It is the deterrent effect of penal provisions which protects the consumer from the loss he would sustain if the offence were committed. If it is committed he does not receive the amount of any fine. As a tax payer he will bear part of the expense of maintaining a convicted offender in prison.
The loss to the consumer is the same whether the acts or omissions result in him being given inaccurate or inadequate information are intended to mislead him, or are due to carelessness or inadvertance. So is the corresponding gain to the other party to the business transaction with the consumer in the course of which those acts or omissions occur. Where, in the way that businesses are now conducted, they are likely to be acts or omissions of employees of that party and subject to his orders, the most effective method of deterrence is to place upon the employer the responsibility of doing everything which lies within his power to prevent his employees from doing anything which will result in the commission of an offence.
This, I apprehend, is the rational and moral justification for creating in the field of consumer protection, as also in the field of public health and safety, offences of ‘strict liability’ for which an employer or principal, in the course of whose business the offences were committed, is criminally liable, notwithstanding that they are due to acts or omissions of his servants or agents which were done without his knowledge or consent or even were contrary to his orders. But this rational and moral justification (and here come words of significance in the present case) does not extend to penalising an employer or principal who has done everything that he can reasonably be expected to do by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to control or influence to prevent the commission of the offence (see Lim Chin Aik v. The Queen (1963) AC 160, 174; Sweet v. Parsley (1970) AC 132, 163). What the employer or principal can reasonably be expected to do to prevent the commission of an offence would depend upon the gravity of the injury which it is sought to prevent and the nature of the business in the course of which such offences are committed. The Trade Descriptions Act 1968 applies to all businesses engaged in the supply of goods and services. If considerations of costs and business practicability did not play a part in determining what employers carrying on such business could reasonably be expected to do to prevent the commission of an offence under the Act, the price to the public of the protection afforded to a minority of consumers might well be an increase in the cost of goods and services to consumers generally.’

Judges:

Lord Diplock, Lord Reid, Viscount Dilhorne

Citations:

[1971] CLY 10538, [1972] AC 153, [1971] 2 WLR 1166, [1971] 2 All ER 127, [1971] UKHL 1

Links:

Bailii

Statutes:

Trade Descriptions Act 1968 23

Jurisdiction:

England and Wales

Citing:

Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .

Cited by:

Considered – Regina v British Steel Plc CACD 31-Dec-1994
British Steel employed two sub-contractors to work in moving a steel tower under their supervision. One platform fell on one of the sub-contractors, killing him. British Steel claimed they had delegated their responsibilities under the Act, and were . .
Cited – MCI Worldcom International Inc v Primus Telecommunications Inc ComC 25-Sep-2003
The claimant sought judgment, and the defendant leave to amend its defence. The question was whether the proposed defence had any reasonable prospect of success.
Held: The misrepresentation alleged was made by the claimant’s in-house . .
Cited – Express Ltd v The Environment Agency QBD 15-Jul-2004
The dairy appealed its conviction for allowing cream to enter a brook from the land of its customer.
Held: Polluting matter did not need to be itself noxious or poisonous, it was enough that it stained or tinted the water as did cream. Though . .
Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – Attorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Majrowski 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 . .
Cited – KR and others v Royal and Sun Alliance Plc CA 3-Nov-2006
The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The . .
Cited – Ferguson v British Gas Trading Ltd CA 10-Feb-2009
Harassment to Criminal Level needed to Convict
The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – A Ltd and Othersi, Regina v CACD 28-Jul-2016
The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act . .
Cited – Lincolnshire County Council v Safeway Stores Plc Admn 19-Apr-1999
Appeal against conviction for selling food after sell by date. . .
Cited – X v Kuoni Travel Ltd SC 24-Jul-2019
The claimant had been raped by a member of staff at the hotel in Sri Lanka booked through the respondent travel company. She now appealed from dismissal of the claim.
Held: Questions were referred to the ECJ, namely: ‘(1) Where there has been . .
Lists of cited by and citing cases may be incomplete.

Crime, Company, Consumer

Leading Case

Updated: 17 April 2022; Ref: scu.186448

Attorney General of Belize and others v Belize Telecom Ltd and Another: PC 18 Mar 2009

(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was argued that a term was to be implied requiring resignation of a director when the class of shareholdings he represented ceased to exist.
Held: The implication of a term is an exercise in the construction of the contract as a whole. The background facts should have been admitted as evidence to interpret the articles in this particular situation: ‘The implication as to the composition of the board was not based upon extrinsic evidence of which only a limited number of people would have known but upon the scheme of the articles themselves and, to a very limited extent, such background as was apparent from the memorandum of association and everyone in Belize would have known, namely that telecommunications had been a state monopoly and that the company was part of a scheme of privatisation.’
Lord Hoffmann said that the court ‘cannot introduce terms to make [a contract, statute or articles of association] fairer or more reasonable. It is concerned only to discover what the instrument means.’ and . .
‘It follows that in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean. It will be noticed from Lord Pearson’s speech that this question can be reformulated in various ways which a court may find helpful in providing an answer – the implied term must ‘go without saying’, it must be ‘necessary to give business efficacy to the contract’ and so on – but these are not in the Board’s opinion to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?’ and . .
‘An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves.’

Judges:

Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2009] UKPC 10, [2009] 1 WLR 1988, 26 BHRC 578, [2009] 2 BCLC 148, [2009] 2 All ER (Comm) 1, [2009] BCC 433, [2009] Bus LR 1316, [2009] 2 All ER 1127

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – The Moorcock CA 1889
Unless restricted by something else, an employer ought to find work to enable a workman to perform his part of the bargain, namely, to do his work. A term will be implied into a contract only to the extent required to give the contract efficacy: ‘if . .
Cited – Bratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
Cited – BP Refinery (Westernport) Pty Ltd v The Shire of Hastings PC 1977
(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a . .
Cited – Shirlaw v Southern Foundries (1926) Ltd CA 1939
The court warned against the over-ready application of any principle to justify the implication of terms into a contract. McKinnon LJ set out his ‘officious bystander’ test: ‘If I may quote from an essay which I wrote some years ago, I then said: . .
Cited – Trollope and Colls Limited v North West Metropolitan Regional Hospital Board HL 1973
The court was requested to imply a term into a building contract.
Held: The term could not be implied, since at least four alternatives might also be implied.
Lord Pearson said: ‘[T]he court does not make a contract for the parties. The . .
Cited – Holmes v Keyes CA 1959
Where provisions were ambiguous a construction which produced reasonable business efficacy was preferred over one which produced an unreasonable result. Jenkins LJ said: ‘I think that the articles of association of the company should be regarded as . .

Cited by:

Cited – Strydom v Vendside Ltd QBD 18-Aug-2009
The claimant sought recovery of a sum paid to the defendant as a commission by his union during his claim for personal injuries at work, relying on a term he sought to have implied into his contract, that the costs position should not be . .
Cited – Grisbrook v MGN Ltd and Others ChD 16-Oct-2009
The claimant sought an order committing officers of the defendant company for having failed to obey a court order requiring the defendant to cease infrigement of his copyright in photographs. He operated as a photographer of celebrities selling . .
Cited – Sectorguard Plc v Dienne Plc ChD 3-Nov-2009
The claimant alleged misuse of confidential information in the form of its customer list, and its charges to them. The defendant company was run by former employees of the claimant. A later allegation was made of accessing the defendant’s private . .
Cited – Hughes v Borodex Ltd CA 27-Apr-2010
The court considered the determination of a new rent on the conversion of a long tenancy protected under Part I of the 1954 Act to an assured periodic tenancy under the 1988 Act. The tenant had carried out improvements which she now wanted to be . .
Adopted – Mediterranean Salvage and Towage Ltd v Seamar Trading and Commerce Inc (‘The Reborn’) CA 10-Jun-2009
The court confirmed that the necessity to give business efficacy to a contract was still required for the implication of a term into a contract. . .
Applied – Crema v Cenkos Securities Plc CA 16-Dec-2010
C sought payment of broker fees after assisting in raising funds for a venture capital company. The parties disputed the terms as to when payment was to be made.
Held: The appeal was allowed. The evidence did not allow the inference of the . .
Cited – Garratt v Mirror Group Newspapers Ltd CA 13-Apr-2011
The claimant had been employed by the defendant. They made him redundant. He claimed and enhanced payment saying that his emloyment was covered by a collective agreement, but when he refused to sign a compromise agreement, the company paid him only . .
Cited – Mulcaire v News Group Newspapers Ltd ChD 21-Dec-2011
The claimant, a private investigator had contracted with the News of the World owned by the defendant but since closed. He had committed criminal offences in providing information for the paper, had been convicted and had served his sentence. He . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Considered – Unique Pub Properties v Onifas Limited ChD 2011
Enterprise owned the reversion on the lease of a public house, The Bedford, in Balham, having taken as assignment of that reversion from Unique. Onifas Ltd was the tenant. Unique had installed a ‘DMS’ flow measurement system at The Bedford in 2006. . .
Cited – Graiseley Properties Ltd and Others v Barclays Bank Plc ComC 29-Oct-2012
The claimant sought damages alleging that the wrongful manipulation of the LIBOR interest rate by the defendants had caused them losses. Loan facilities which they had taken out had been subject to interest rates set by reference to LIBOR. The . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another CA 14-May-2014
The court considered the operation of a break clause within a lease, and in particular ‘ Can the court imply a term which enables the lessee to get back that part of the advance payment of rent which relates to a period (‘the broken period’) after . .
Cited – Mr H TV Ltd v ITV2 Ltd ComC 8-Oct-2015
The claimant had contracted with the defendant for the production of a series of reality TV shows featuring celebrities. After severe personal clashes between the people involved on the claimants side, the contract was terminated. The claim was that . .
Cited – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers (Scotland) SC 16-Dec-2015
The appellant challenged the grant of permission to the erection of wind turbines within sight of its golf course.
Held: The appeal failed. The challenge under section 36 was supported neither by the language or structure of the 1989 Act, and . .
Rephrased – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Rephrased – Foo Jong Peng and others v Phua Kiah Mai and another 8-Oct-2012
Supreme Court of Singapore – Court of Appeal) The court refused to follow the reasoning in Belize at least in so far as ‘it suggest[ed] that the traditional ‘business efficacy’ and ‘officious bystander’ tests are not central to the implication of . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Leading Case

Updated: 16 April 2022; Ref: scu.322751

Synaptek Ltd v Young (Inspector of Taxes): ChD 28 Mar 2003

The taxpayer was a computer consultant working through the medium of a limited liability company. The respondent sought to make him liable for social security contributions as an employee of the business which used his services.
Held: The anti-avoidance provisions were effective. The court listed the factors which weighed on either side of asking whether he was an employee, but included that he only financial risk to him was of the client company’s insolvency, the contract was for a fixed period. And he was integrated into the work force, having a line manager. What weight was to be given to each factor was a matter of fact for the commissioners, and the court was unable to say that they were wrong in law.

Judges:

Hart J

Citations:

Times 07-Apr-2003, Gazette 05-Jun-2003, [2003] ICR 1149

Statutes:

Finance Act 2000, Social Security Contributions (Intermediaries) regulations 2000 (2000 No 727) 6

Jurisdiction:

England and Wales

Citing:

Cited – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .

Cited by:

Cited – Usetech Ltd v HM Inspector of Taxes ChD 8-Oct-2004
The taxpayer operated through a one man limited company employed by a recruitment agency to provide IT services to a customer. He appealed a finding that he was liable to pay tax as an employee.
Held: The appeal was dismissed. The legislative . .
Lists of cited by and citing cases may be incomplete.

Company, Income Tax, Employment

Updated: 15 April 2022; Ref: scu.180509

Re: Ravenhart Service (Holdings) Limited: ChD 2004

The petitioners in a combined section 459 and contributories’ winding up petition sought interim relief akin to an ordinary freezing order but which was designed specifically to prevent the assets of the company from dissipation, and similar relief against certain of the company’s subsidiaries. Counsel for the respondents submitted that the application for that interim relief was fatally flawed (under Ravenhart) because the petition did not assert any cause of action for restitution or other monetary payment, but rather an order for the purchase of the petitioner’s shares by one or more of the respondents, or alternatively an order for compulsory winding up. The continuation of relief against the subsidiaries was abandoned by consent.
Held: The court rejected counsel’s submissions based upon Premier Electronics. It expressly adopted Pumfrey J’s. conclusion that a section 459 petition asserted a sufficient cause of action against the company to justify Mareva relief, that an interim order preventing the dissipation of the company’s assets pending the hearing of the petition was well within the court’s jurisdiction as a means of preserving the effectiveness of any order which might be made upon the hearing of the petition.

Judges:

Etherton J

Citations:

[2004] 2 BCLC 376, [2004] EWHC 76 (Ch)

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

Cited – HM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 15 April 2022; Ref: scu.245161

Regina v G and R: HL 16 Oct 2003

The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the defendant had given no thought to a risk of damage, but because of his characteristics he might not have seen the danger if he had thought about it.
Held: The high threshold for the House to depart from its earlier judgments was satisfied in this case. Caldwell (which would in this case have disallowed any adjustment for the age or understanding of the defendaants) should be overruled. It has led to cases such as this, cases of clear injustice. Parliament had meant to get rid of the older connotations of malicious intent. It would be wrong to create specific exemptions for certain forms of disability such as youth, since this would lead only to further arbitrary complication. The culpability of the defendants should be decided according to their actual perception of the risk allowing for their personal characteristics.
Lord Bingham of Cornhill said: ‘in any statutory definition of a crime, ‘malice’ must, as we have already seen, be taken – not in its vague common law sense as ‘wickedness’ in general, but – as requiring an actual intention to do the particular kind of harm that in fact was done . . For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so.’
Lord Steyn acknowledged the special position of children in the criminal justice system: ‘Ignoring the special position of children in the criminal justice system is not acceptable in the modern civil society. In 1990 the United Kingdom ratified the Convention on the Rights of the Child (Cm 1976) which entered into force in January 1992. Article 40(1) provides ‘States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’. This provision imposes both procedural and substantive obligations on the State parties to protect the special position of children in the criminal justice system . . it is true that the Convention became binding on the United Kingdom after R v Caldwell was decided. But the House cannot ignore the norm created by the Convention. This factor on its own justified a reappraisal of R v Caldwell.’

Judges:

Lord Bingham of Cornhill, Lord Browne-Wilkinson, Lord Steyn, Lord Hutton, Lord Rodger of Earlsferry

Citations:

[2003] UKHL 50, Times 17-Oct-2003, Gazette 13-Nov-2003, [2003] 3 WLR 1060, [2004] 1 AC 1034, (2003) 167 JP 621, (2003) 167 JPN 955, [2004] 1 Cr App R 21, [2003] 4 All ER 765

Links:

House of Lords, Bailii, Bailii

Statutes:

Criminal Damage Act 1971 1, Malicious Damage Act 1861 51

Jurisdiction:

England and Wales

Citing:

Overruled – Commissioner of Police v Caldwell HL 19-Mar-1981
The defendant got drunk and set fire to the hotel where he worked. Guests were present. He was indicted upon two counts of arson. He pleaded guilty to the 1(1) count but contested the 1(2) charge, saying he was so drunk that the thought there might . .
Cited – Regina v Pembliton CCCR 1874
The defendant was fighting in the street. He picked up a large stone and threw it at the people he had been fighting with. He missed and broke a window causing damage of a value exceeding pounds 5. The jury convicted the defendant, although finding . .
Cited – Regina v Child 1871
The defendant had not intended to set fire to a house and had thought that what he was doing would not do so. He was not guilty. . .
Approved – Regina v Cunningham CCA 1957
Specific Intention as to Damage Caused
(Court of Criminal Appeal) The defendant wrenched a gas meter from the wall to steal it. Gas escaped. He was charged with unlawfully and maliciously causing a noxious thing, namely coal gas, to be taken by the victim.
Held: Byrne J said: ‘We . .
Cited – Regina v Welch 1875
The defendant faced charges of unlawfully and maliciously killing, maiming and wounding a mare under the Act.
Held: The trial judge was right to direct the jury to convict if they found that the defendant in fact intended to kill, maim or . .
Cited – Regina v Faulkner 1877
(Irish Court of Crown Cases Reserved) The defendant had set fire to a ship while stealing rum from its hold. He had been boring a hole by candlelight and some rum had spilled out and been ignited. It was conceded that he had not intended to burn the . .
Cited – Regina v Harris 1882
The defendant was charged with setting fire to a dwelling house. The judge directed: ‘Again, if you think that the prisoner set fire to the frame of the picture with a knowledge that in all probability the house itself would thereby be set on fire, . .
Cited – Regina v Mowatt CACD 20-Jun-1967
The defendant was attacked by his victim, and he hit his victim in the face. He was charged with wounding with intent to do grievous bodily harm with an alternative of unlawful wounding also open to the jury. The judge gave no direction on the . .
Cited – Regina v Briggs (Note) CACD 1977
The defendant caused damage to a car. The appeal turned on the trial judge’s direction on the meaning of ‘reckless’.
Held: The conviction was set aside. The judge had not adequately explained that the test to be applied was that of the . .
Cited – Regina v Parker (Daryl) CACD 1977
In a temper the defendant broke a telephone by smashing the handset violently down on to the telephone unit.
Held: Applying but modifying Briggs, the defendant had been fully aware of all the circumstances and, if ‘he did not know, as he said . .
Cited – Regina v Stephenson CACD 1979
The defendant sought to sleep in a hollow in a haystack. He lit a fire, to keep warm, which set fire to the stack. He appealed against his conviction under the 1971 Act. He had a long history of schizophrenia and may not have had the same ability to . .
Approved – Regina v Lawrence (Stephen) HL 1981
The defendant had ridden a motor-cycle and hit a pedestrian. The court asked whether he had been reckless.
Held: The House understood recklessness as ‘a state of mind stopping short of deliberate intention, and going beyond mere inadvertence’ . .
Cited – Regina v Miller HL 17-Mar-1982
The defendant, a vagrant, fell asleep in an empty house. His lighted cigarette fell onto his mattress, and a fire started. Rather than put it out, he moved to another room. He was accused of arson.
Held: He was guilty. A defendant would be . .
Cited – Elliott v C 1983
A 14-year old girl of low intelligence entered a shed, poured white spirit on the floor and set it alight. The fire destroyed the shed after she left. The allegation was that she was reckless. The justices applied Caldwell but inferred that in his . .
Cited – Regina v Reid HL 1992
The defendant, convicted of causing death by reckless driving contrary asked the House to reconsider its decision in Lawrence on which the trial judge’s jury direction had been based.
Held: Lawrence remained good. (Lord Keith) ‘where the . .
Applied – Regina v Coles CACD 1995
The 15 year old defendant appealed his conviction on the basis of recklessness, challenging, unsuccessfully, the rule in Caldwell.
Held: Because recklessness was to be judged by the standard of the reasonable prudent man, expert evidence of . .
Cited – Director of Public Prosecutions v Majewski HL 1976
The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that . .
Cited – Regina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Cited – Beckford v The Queen PC 15-Jun-1987
(Jamaica) Self defence permits a defendant to use such force as is reasonable in the circumstances as he honestly believed them to be. ‘If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Regina v K CACD 11-Dec-2002
While a girl under the age of 16 cannot in law consent to an indecent assault, it is a defence if the defendant honestly believed she was over 16. . .
Cited – Regina v Graham (Paul) CACD 18-Dec-1981
The defence of duress requires establishment of a reasonable belief. In judging the accused’s response the test is: ‘have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Regina v Martin (Colin) CACD 29-Nov-1988
Defence of Necessity has a Place in Criminal Law
The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he . .
Cited – Regina v Bowen CACD 24-Apr-1996
The low IQ of the defendant was not relevant to jury’s consideration of the effect of duress as a defence. The age and sex of the defendant (but possibly no other characteristics) are relevant to the cogency of the threat. . .
Cited – Regina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .

Cited by:

Cited – Attorney General’s Reference (No 3 of 2003) CACD 7-Apr-2004
Police Officers had been acquitted of misconduct in public office. They had stood by in a police station custody suite as a prisoner lay on the floor and died.
Held: The trial took place before R -v- G which had overruled Caldwell. The . .
Cited – Regina v Misra; Regina v Srivastava CACD 8-Oct-2004
Each doctor appealed convictions for manslaughter by gross negligence, saying that the offence was insufficiently clearly established to comply with human rights law, in that the jury had to decide in addition and as a separate ingredient whether . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Brown v The Queen (Jamaica) PC 13-Apr-2005
A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Foster and Another v The Queen PC 23-Jan-2007
(Barbados) The appellants had been convicted under the felony murder rule, before its abolition in Barbados in 1994. . .
Cited – HC (A Child), Regina (on The Application of) v Secretary of State for The Home Department and Another Admn 25-Apr-2013
The claimant sought to challenge the policy that a 17 year old under arrest was to be treated as an adult for interview purposes, even though at every other stage of a criminal investigation and prosecution, he would be treated as a child. He had . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – Al Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
Cited – Ball v Johnson 29-May-2019
Summons granted for political lies allegation
(Westminster Magistrates Court) The court gave its reasons for acceding to a request for the issue of a summons requiring the defendant to answer a charge for three offences alleging misconduct in a public office.
Held: There was prima facie . .
Cited – Navigators Insurance Company Ltd and Others v Atlasnavios-Navegacao Lda SC 22-May-2018
The vessel had been taken by the authorities in Venezuela after drugs were found to have been attached to its hull by third parties. Six months later it was declared a constructive total loss. The ship owners now sought recovery of its value from . .
Cited – Keal, Regina v CACD 18-Mar-2022
Insanity Plea not for D believing he had no choice
The court was asked whether the defence of insanity would be available to a psychotic and deluded defendant who was aware that his act was wrong, but believed himself compelled to perform it. The defendant, with a history of mental problems, had . .
Lists of cited by and citing cases may be incomplete.

Crime, European, Company, Constitutional, Children

Updated: 14 April 2022; Ref: scu.186774

Randhawa and Another v Turpin and Another: CA 1 Aug 2017

The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators

Judges:

Sir Geoffrey Vos, Underhill, Henderson LJJ

Citations:

[2017] EWCA Civ 1201, [2017] WLR(D) 544, [2018] 2 WLR 1175, [2018] Ch 511, [2017] BCC 406

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Randhawa and Another v Turpin and Another ChD 2-Mar-2015
Challenge to company administrators’ fees. . .
At ChD – Randhawa and Others v Turpin and Another ChD 22-Jul-2016
. .
Cited – Re New Cedos Engineering Company Ltd 1994
The company had two directors. On a death the inheritor of a members shares were entitled to have their shares registered. The majority shareholder died. The remaining board refused to register his widow as owner of the shares. She remarried, and . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 13 April 2022; Ref: scu.591692

Secretary of State for Trade and Industry v Tjolle and Others: ChD 9 May 1997

Delay and the probable short period of disqualification are proper reasons for Secretary of State to consider discontinuing proceedings. As to whether a person ‘assumes to act as a director’: ‘It may be difficult to postulate any one decisive test. I think what is involved is very much a question of degree. The court takes into account all the relevant factors. Those factors include at least whether or not there was a holding out by the company of the individual as a director, whether the individual used the title, whether the individual had proper information (e.g. management accounts) on which to base decisions, and whether the individual had to make major decisions and so on. Taking all these factors into account, one asks ‘was this individual part of the corporate governing structure’, answering it as a kind of jury question. In deciding this, one bears very much in mind why one is asking the question. That is why I think the passage I quoted from Millett J is important. There would be no justification for the law making a person liable to misfeasance or disqualification proceedings unless they were truly in a position to exercise the powers and discharge the functions of a director. Otherwise they would be made liable for events over which they had no real control, either in fact or law.’

Judges:

Jacob J

Citations:

Gazette 18-Jun-1997, Times 09-May-1997, [1998] 1 BCLC 333

Statutes:

Company Directors Disqualification Act 1985, Company Directors Disqualification Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Re Hydrodam (Corby) Ltd 1994
Millett J described a de facto director as: ‘a person who assumes to act as a director. He is held out as a director by the company, claims and purports to be a director, although never actually or validly appointed as such. To establish that a . .
Approved – Secretary of State for Trade and Industry v Elms 16-Jan-1997
‘At the forefront of the test I think I have to go on to consider by way of further analysis both what Millett J meant by ‘functions properly discharged only by a director’, and Mr Lloyd QC meant by ‘on an equal footing’. As to one it seems to me . .

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Explained – Re Kaytech International plc; Secretary of State for Trade and Industry v Kaczer and others CA 1999
Robert Walker LJ said that the expression ‘de facto director’ had been in use for a long time, and commented on the failure to distinguish in pleadings between pleas that someone was a shadow or a de facto director. The two different labels were not . .
Cited – The Secretary of State for Business, Innovation and Skills v Weston and Another ChD 5-Sep-2014
The Secretary of State sought company director disqualification orders against the defendants saying they had been convicted of making false instruments. The Insolvency service had decided against such proceedings, and the Crown Court judge, when . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 13 April 2022; Ref: scu.89147

Secretary of State for Trade and Industry v Carter and Others: ChD 14 Aug 1997

Affidavits supporting application to disqualify a company director must distinguish between fact, argument and the fault claimed. The respondents in such an application should be encouraged to focus on the essential factual matters in their affidavits in response. The liquidators, in their evidence should equally distinguish clearly between the facts bringing the case before the court and the matters upon which the allegations of unfitness were based.

Judges:

Neuberger J

Citations:

Times 14-Aug-1997

Statutes:

Company Directors Disqualification Act 1986, Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 (1987 No 2023) 6

Jurisdiction:

England and Wales

Company

Updated: 13 April 2022; Ref: scu.89126

Secretary of State for Trade and Industry v Crane and Another: ChD 4 Jun 2001

Outside of any statutory limitations, there was nothing to prevent a prosecutor making use of helpful ideas disclosed in civil proceedings in his case against a defendant. Questions about a defendant’s right of silence in criminal proceedings did not apply in civil matters. Judges in either court had powers to control their proceedings to prevent unfairness, but the purposes of the civil court could not be delayed indefinitely because of a risk that the defendant might be prejudiced in later criminal proceedings.

Citations:

Times 04-Jun-2001, Gazette 07-Jun-2001

Statutes:

Company Directors Disqualification Act 1986 20

Jurisdiction:

England and Wales

Company, Human Rights, Criminal Practice

Updated: 13 April 2022; Ref: scu.89129

Secretary of State for Trade and Industry v Ivens and Another: ChD 24 Sep 1997

Evidence of activities of director in non-insolvent but associated company admissible in disqualification proceedings.

Citations:

Times 24-Sep-1997

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Cited by:

Cited – The 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 . .
Cited – The 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: 13 April 2022; Ref: scu.89138

In Re Ritson, Ritson v Ritson: CA 1899

The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] was only his share of the surplus after payment of the joint debts’

Judges:

Chitty LJ, Lindley MR

Citations:

[1899] 1 Ch 128

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Ritson ChD 1898
. .

Cited by:

Cited – Highbury Pension Fund Management Company and Another v Zirfin Investments Ltd and Others ChD 14-Feb-2013
The court was asked: ‘a) Does the doctrine of marshalling permit the marshalling of securities held over property that does not belong to the common debtor? In particular, is a creditor of a guarantor entitled to marshal (or be subrogated to) . .
Cited – McLean and Another v Trustees of The Bankruptcy Estate of Dent and Others ChD 26-Oct-2016
Marshalling your Dogs Equitably
Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of . .
Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 12 April 2022; Ref: scu.570481

Regina v McDonnell: 1966

Bristol Assizes – the defendant was indicted, inter alia, with two counts of conspiring with a company. Each count concerning a separate company. The defendant was the ‘sole person in either of the companies . . responsible for any of the acts of the company and no one else had any authority to act for the company or any responsibility for the acts of the company.’
Held: Nield J said that ‘a company and a director cannot be convicted of conspiracy when the only human being who is said to have broken the law or intended to do so is the one director’

Judges:

Nield J

Citations:

[1966] 1 QB 233, (1966) 50 Cr App R 5

Jurisdiction:

England and Wales

Cited by:

Cited – A Ltd and Othersi, Regina v CACD 28-Jul-2016
The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act . .
Lists of cited by and citing cases may be incomplete.

Company, Crime

Updated: 12 April 2022; Ref: scu.570727

Randhawa and Others v Turpin and Another: ChD 22 Jul 2016

Judges:

Purle QC HHJ

Citations:

[2016] EWHC 2156 (Ch), [2016] BCC 814, [2017] 1 BCLC 240

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Randhawa and Another v Turpin and Another ChD 2-Mar-2015
Challenge to company administrators’ fees. . .

Cited by:

At ChD – Randhawa and Another v Turpin and Another CA 1-Aug-2017
The Court was asked whether the sole director of a company, whose articles required two directors for its board meeting to be quorate, could validly appoint administrators . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 April 2022; Ref: scu.569647

Director of Public Prosecutions v Kent and Sussex Contractors Ltd: 1945

The court considered the liability of a company under provisions being, ‘with intent to deceive, made use . . of a document which was false in a material particular’
Held: The General Manager was capable of acting or speaking as the company;

Judges:

Lord Caldecote

Citations:

[1944] KB 146, [1944] 1 All ER 119

Jurisdiction:

England and Wales

Cited by:

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

Company, Crime

Updated: 12 April 2022; Ref: scu.565997

Davies v H and E Ecroyd Ltd: ChD 1996

The partnership was made up of a 109 acre dairy holding owned by one partner, and the second partner managed the business. The dairy holding itself was kept out of the partnership assets by explicit agreement. D, the former manager claimed, on the partnership being dissolved, that a milk quota had become a partnership asset by dint of his efforts.
Held: The value of the quota was not on a par with the agricultural holding, since it arose only after the partnership commenced. A court should not extend what the partners had set out in the agreement.
Blackburn J set out the basis for giving partners rights in relation to the asset of a partner as follows: ‘It arises where a partnership expends money for the benefit of a partner in circumstances where justice requires that, in taking partnership accounts, some allowance should be made to the partnership against that partner for some or all of the amount of the expenditure or of the enhanced value brought about by the expenditure.’

Judges:

Blackburne J

Citations:

[1996] 30 EG 97, (1996) 2 EGLR 5

Statutes:

Arbitration Act 1979 2

Jurisdiction:

England and Wales

Citing:

Applied – Faulks v Faulks ChD 1992
One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad . .
Lists of cited by and citing cases may be incomplete.

Company, Agriculture

Updated: 12 April 2022; Ref: scu.458597

Pawsey v Armstrong: ChD 1881

In the absence of agreement to the contrary, if there is goodwill attached to a business, it must on a dissolution, be sold for the benefit of all partners. The court ordered ‘An account of all dealings and transactions between the Plt and Deft as co-partners, including in such account all dealings with the partnership assets and property since the – day andc; 2. An inquiry of what the credits, property and effects now belonging to the said partnership consist.’

Judges:

Kay J

Citations:

(1881) 18 Ch D 698

Statutes:

Partnership Act 1890

Jurisdiction:

England and Wales

Cited by:

Cited – Faulks v Faulks ChD 1992
One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 12 April 2022; Ref: scu.458600

Drew v Drew: 30 Jul 1813

Negative Plea of no partnership. Not necessary to answer to Circumstances, ending to the Point, upon which the defendant relics, and tenders an Issue by his Plea. Averment to Belief as to the transactions of others sufficient,

Citations:

[1813] EngR 532, (1813) 2 Ves and Bea 159, (1813) 35 ER 279

Links:

Commonlii

Company

Updated: 12 April 2022; Ref: scu.338297

Eagleton v The East India Company: 10 Feb 1802

The sales of the E. I, Company being subject to a reguIation that any buyer not making good the remainder of his purcbase money on or before tbe day limiited for such payment should forfeit the deposit, ‘and should be rendered incapable of buying again at any future sale until he shall have given satisfaction to the Court of Directors;’ Held that the term satisfaction must be held to mean pecuniary compensation for the non-performance of his agreement to pay on the appoinited day, and that a buyer having made default on that day, but afterwards within a further time given to him by the E. I. Company paid the remainder of the purchase-money with interest, might maintain an action against the E. I. Company for refusing to permit him to become a bidder at their sales, such sales being by 9 and 10 W. 3, c, 44, s. 69, declared to be public and open sales. – Quaere, Whether since the passing of 18 Geo. 4, c. 26, which regulates the deposits, forfeitures, and capacities of bidders at the tea sales of the E. 1. Company, the E. 1. Company can make or enforce any other regulations affecting those sales than such as the act of Parrliament has enacted

Citations:

[1802] EngR 96, (1802) 3 Bos and Pul 55, (1802) 127 ER 32

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 12 April 2022; Ref: scu.344913

Helmore v Smith: 1886

The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the life blood of the concern. It is because they trust one another that they are partners in the first instance; it is because they continue to trust one another that the business goes on.’

Judges:

Bacon V-C

Citations:

(1886) 35 Ch D 436

Jurisdiction:

England and Wales

Cited by:

Cited – Simms 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 . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts

Updated: 12 April 2022; Ref: scu.248006

Morris v Kanssen: HL 1946

The House considered the effect of provisions relating to the acts of directors in the 1929 Act. Lord Simonds said: ‘There is, as it appears to me, a vital distinction between (a) an appointment in which there is a defect or, in other words, a defective appointment, and (b) no appointment at all. In the first case it is implied that some act is done which purports to be an appointment but is by reason of some defect inadequate for the purpose; in the second case there is not a defect, there is no act at all. The section does not say that the acts of a person acting as director shall be valid notwithstanding that it is afterwards discovered that he was not appointed a director. Even if it did, it might well be contended that at least a purported appointment was postulated. But it does not do so, and it would, I think, be doing violence to plain language to construe the section as covering a case in which there has been no genuine attempt to appoint at all. These observations apply equally where the term of office of a director has expired, but he nevertheless continues to act as a director, and where the office has been from the outset usurped without the colour of authority.’

Judges:

Lord Simonds

Citations:

[1946] AC 459, [1946] 1 All ER 586, 115 LJ Chancery 177

Statutes:

Companies Act 1929 143

Jurisdiction:

England and Wales

Citing:

Explained – Royal British Bank v Turquand CEC 1856
The plaintiff sought payment from the defendants, a joint stock Company, on a bond, signed by two directors, under the seal of the Company whereby the Company acknowledged themselves to be bound to the plaintiff in pounds 2,000. The company said . .

Cited by:

Cited – Douglas 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. . .
Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .
Cited – Re Richborough Furniture Ltd ChD 21-Aug-1995
The court was faced with the question whether one of the three respondents, who was not a director of the company de jure, was nevertheless a director of the company de facto and as such liable to disqualification.
Held: A de facto director . .
Applied – Re New Cedos Engineering Company Ltd 1994
The company had two directors. On a death the inheritor of a members shares were entitled to have their shares registered. The majority shareholder died. The remaining board refused to register his widow as owner of the shares. She remarried, and . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 12 April 2022; Ref: scu.251747

Oswald Hickson Collier and Co (a firm) v Carter Ruck: HL 1984

A firm is a partnership of two or more persons, and a one man practice is not a firm.
Lord Denning MR said: ‘It was submitted by Mr Cullen that – as the relationship between a solicitor and his client is a fiduciary relationship – it would be contrary to public policy that he should be precluded from acting for a client when that client wanted him to act for him: especially in pending litigation. It seems to me that that submission is right. I cannot see that it would be proper for a clause to be inserted in a partnership deed preventing one of the partners from acting for a client in the future. It is contrary to public policy because there is a fiduciary relationship between them. The client ought reasonably to be entitled to the services of such solicitor as he wishes. That solicitor no doubt has a great deal of confidential information available to him. It would be contrary to public policy if the solicitor were prevented from acting for him by a clause of this kind.’

Judges:

Lord Denning MR

Citations:

[1984] AC 720, [1984] 2 All ER 15

Jurisdiction:

England and Wales

Cited by:

Cited – Rogers, Re In the Estate of ChD 6-Apr-2006
The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 12 April 2022; Ref: scu.240151

Ashworth v Stanwix: QBD 1860

Innocent partners are vicariously liable for the torts of their co-partner.

Citations:

(1860) 3 E and E 701

Jurisdiction:

England and Wales

Cited by:

Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Company

Updated: 12 April 2022; Ref: scu.193868

Clarkson 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 reason of that transaction.’

Judges:

Lord Justice Clerk

Citations:

[1923] AC 100

Citing:

Cited – Taylor 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 . .

Cited by:

Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Torts – Other

Updated: 12 April 2022; Ref: scu.187433

British American Nickel Corporation Ltd v M J O’Brien Ltd: PC 1927

(Canada) The Corporation had issued mortgage bonds secured by a trust deed giving power to a majority of the bondholders to bind the minority. The company proposed a restructuring scheme involving the replacement of these bonds by bonds of a different issue, on different terms. This proposal was passed by the necessary three-quarters majority. It would not have been so passed without the support of the holder of a large number of bonds. That support was procured by promising a large block of ordinary stock of the company, not then of great value but potentially valuable if the price of nickel recovered. The promise was made well before the resolution was put to the bondholders, but it was not mentioned in the documents which gave notice of the resolution.
Viscount Haldane gave the opinion of the Privy Council. He observed in general about powers for a majority to bind a minority of debenture holders, and said: ‘To give a power to modify the terms on which debentures in a company are secured is not uncommon in practice. The business interests of the company may render such a power expedient, even in the interests of the class of debenture holders as a whole. The provision is usually made in the form of a power, conferred by the instrument constituting the debenture security, upon the majority of the class of holders. It often enables them to modify, by resolution properly passed, the security itself. The provision of such a power to a majority bears some analogy to such a power as that conferred by section 13 of the English Companies Act of 1908, which enables a majority of the shareholders by special resolution to alter the articles of association. There is, however, a restriction of such powers, when conferred on a majority of a special class in order to enable that majority to bind a minority. They must be exercised subject to a general principle, which is applicable to all authorities conferred on majorities of classes enabling them to bind minorities; namely, that the power given must be exercised for the purpose of benefiting the class as a whole, and not merely individual members only. Subject to this, the power may be unrestricted.’ He continued: ‘It has been suggested that the decision in these two cases on the last point is difficult to reconcile with the restriction already referred to, where the power is conferred, not on shareholders generally, but on a special class, say, of debenture holders, where a majority, in exercising a power to modify the rights of a minority, must exercise that power in the interests of the class as a whole. This is a principle which goes beyond that applied in Menier v. Hooper’s Telegraph Works, inasmuch as it does not depend on misappropriation or fraud being proved. But their Lordships do not think that there is any real difficulty in combining the principle that while usually a holder of shares or debentures may vote as his interest directs, he is subject to the further principle that where his vote is conferred on him as a member of a class he must conform to the interest of the class itself when seeking to exercise the power conferred on him in his capacity of being a member. The second principle is a negative one, one which puts a restriction on the completeness of freedom under the first, without excluding such freedom wholly.
The distinction, which may prove a fine one, is well illustrated in the carefully worded judgment of Parker J. in Goodfellow v Nelson Line. It was there held that while the power conferred by a trust deed on a majority of debenture holders to bind a minority must be exercised bona fide, and while the Court has power to prevent some sorts at least of unfairness or oppression, a debenture holder may, subject to this vote in accordance with his individual interests, though these may be peculiar to himself and not shared by the other members of the class. It was true that a secret bargain to secure his vote by special treatment might be treated as bribery, but where the scheme to be voted upon itself provides, as it did in that case, openly for special treatment of a debenture holder with a special interest, he may vote, inasmuch as the other members of the class had themselves known from the first of the scheme. Their Lordships think that Parker J. accurately applied in his judgment the law on this point.’

Judges:

Viscount Haldane

Citations:

[1927] AC 369

Jurisdiction:

Canada

Cited by:

Cited – Redwood Master Fund Ltd and Others v TD Bank Europe Ltd and Others ChD 11-Dec-2002
The claimants were a minority of a lending syndicate. A change to the terms of the syndication agreement had been proposed which they considered would prejudice them. Risks of the loan arrangement would be transferred to them.
Held: The change . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 12 April 2022; Ref: scu.180548

Regina v Leeds Magistrates Court ex parte Serif Systems Limited and Hamilton: Admn 9 Oct 1997

The applicant sought that summonses be set aside as an abuse of process, being begun to embarrass him as he set out to become an MP. Thirty one private summonses had been issued.
Held: Of the summonses to be continued it could not be said that they had no prospect of success or that they were merely technical. Whilst the Director of Public Prosecutions might properly interfere to drop the cases, it was not for the court to do do. Gage J: ‘As to in what circumstances the court will intervene the authorities go no further than to describe those circumstances in general terms, using such words and phrases as oppressive, vexatious, truly oppressive or a manipulation of the court’s process. All the authorities show it will be only in rare and exceptional cases that this court will intervene. ‘

Citations:

[1997] EWHC Admin 851

Citing:

Cited – Regina v Baines 1909
In a very rare case the court will be willing to exercise its supervisory jurisdiction to prevent an abuse of the court process by an action designed with improper motives: ‘There can be no doubt as to the jurisdiction of the Court to interfere . .
Cited – Director of Public Prosecutions v Humphrys HL 1977
Humphrys was charged with driving while disqualified. The issue was the correctness of the identification by a police constable. In evidence, Humphrys denied that he was the driver, or indeed that he had driven any car during the year in question. . .
Cited – Moevao v Department of Labour 1980
(New Zealand) Richardson J said: ‘The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being . .
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Regina v Bow Street Stipendiary Magistrate Ex Parte South West Shipping and Others QBD 22-Jul-1992
Rights to private prosecution and takeover by DPP were examined: ‘Section 3(2) and section 6 [of the Prosecution of Offences Act 1985] make a coherent and consistent framework in which the right of a private citizen to bring a prosecution is . .
Lists of cited by and citing cases may be incomplete.

Magistrates, Company

Updated: 12 April 2022; Ref: scu.137796

In re Pantmaenog Timber Co Ltd: CA 25 Jul 2001

The Official Receiver could not use the powers given to him for the purposes of his insolvency duties to require production of documents form solicitors and accountants, to satisfy duties placed on him by the Secretary of State for the purpose of company director disqualification proceedings. The secretary of state could not ask the Official Receiver to carry out steps for that purpose by exercising powers given to the receiver for other purposes.

Judges:

Chadwick LJ, Kennedy LJ

Citations:

Times 08-Aug-2001, Gazette 13-Sep-2001, [2002] Ch 239

Statutes:

Company Directors Disqualification Act 1986 7(4) 7(1)(b), Insolvency Act 1986 235 236

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Pantmaenog Timber Company Ltd ChD 15-Dec-2000
The duties of the Official Receiver in company director disqualification proceedings were related to the gathering of information regarding the trading of a company. The powers given to the receiver did not include the power to commence proceedings, . .

Cited by:

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

Company, Insolvency

Updated: 12 April 2022; Ref: scu.136168

Piercy v Mills: ChD 1920

Peterson J said: ‘[D]irectors are not entitled to use their powers of issuing shares merely for the purpose of maintaining their control or the control of themselves and their friends over the affairs of the company, or merely for the purpose of defeating the wishes of the existing majority of shareholders. That is, however, exactly what has happened in the present case. With the merits of the dispute as between the directors and the plaintiff I have no concern whatever. The plaintiff and his friends held a majority of the shares of the company, and they were entitled, so long as that majority remained, to have their views prevail in accordance with the regulations of the company; and it was not, in my opinion, open to the directors, for the purpose of converting a minority into a majority, and solely for the purpose of defeating the wishes of the existing majority, to issue the shares which are in dispute in the present action.’

Judges:

Peterson J

Citations:

[1920] 1 Ch 77

Jurisdiction:

England and Wales

Cited by:

Cited – Hogg v Cramphorn Limited ChD 1966
An honest belief that directors should seek to maintain their office for the good of the company did not prevent the motive for issuing additional shares to prevent a take-over from being an improper motive. The directors’ powers to issue shares . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 April 2022; Ref: scu.472245

In re Gerald Cooper Chemicals Ltd: ChD 1978

A business might be found to have been conducted in such a way as to defraud creditors even though only one act of defrauding had been found and one creditor defrauded.

Citations:

[1978] Ch 262

Jurisdiction:

England and Wales

Cited by:

Cited – Morphitis v Bernasconi and others CA 5-Mar-2003
The appellants had been directors of a company which fell into difficulties. A new company was begun, and traded, and the other continued for a year before being wound up by a landlord. The lease was disclaimed. Only the landlord lost out. He . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 11 April 2022; Ref: scu.180039

Robert Alfred Hurst v Ian Leeming: ChD 14 Mar 2003

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 499 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Hurst v Leeming (9026) ChD 9-May-2002
The claimant solicitor, had instructed the defendant, a barrister, to represent him in a civil claim. He sought had damages for alleged negligence. He had agreed that the action could not proceed, and the court had to decide the costs. He resisted . .
See Also – Hurst v Leeming CA 23-Jul-2002
. .

Cited by:

See Also – Hurst v Leeming SCCO 9-May-2003
. .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions

Updated: 11 April 2022; Ref: scu.179917

Beckett Investment Management Group Ltd and others v Hall and others: CA 28 Jun 2007

The defendants, who had been employed by the claimant as independent financial advisers, covenanted that, for the year immediately following termination of their employment, they would not deal with any of the claimant’s clients with whom they had dealt in the preceding year; and that, if they had then dealt with agents of its clients, the agents should be deemed to be its clients for this purpose. The company sought to enforce restrictive covenants entered into by employees of its subsidiary. The employees said that the covenants did not benefit them.
Held: The court should take a realistic view of corporate identity in such situations. The covenants were enforceable. The deeming of agents as clients was unreasonable; that the covenant should be severed and the deeming provision removed; and that the remainder of the restraint should be enforced against the defendants.
Maurice Kay LJ observed a) that ‘[a]t one stage’ there had been an assumption in the authorities, such as the Mason case, that courts should be reluctant to sever a covenant in restraint of trade in favour of an employer;
(b) declared at paras 35-37 that the appropriate starting-point was what Lord Sterndale and Younger LJ had said in the Attwood case;
(c) noted at para 38 that in the T Lucas case, cited in para 69 above, the court had authoritatively rejected the second prerequisite of severance which Younger LJ had identified;
(d) addressed at para 40 the three criteria identified in the Sadler case and noted that it had been applied both in the Marshall case and in the TFS Derivatives case cited in para 41 above;
(e) rejected at paras 41 and 42 the suggestion that those three criteria applied only to claims by employees to post-employment commission and likened the third criterion to the reference in the T Lucas case to the availability of severance if achievable ‘without altering the nature of the contract’;
(f) suggested at para 43 that ‘the threefold test . . is a useful way of approaching these cases and should be adopted’; and
(g) concluded at para 44 that application of those three criteria rendered the deeming provision removable.

Judges:

Sir Anthony Clarke Mr Carnwath LJ , Maurice Kay LJ

Citations:

[2007] EWCA Civ 613, Times 11-Jul-2007, [2007] IRLR 793, [2007] ICR 1539

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Beckett Investment Management Group Ltd. Beckett Financial Services Ltd. Beckett Asset Management Ltd and others v Hall and others QBD 16-Feb-2007
. .
Cited – Office Angels Ltd v Rainer-Thomas CA 1991
Reasonability Test of Post Employment Restriction
The court re-stated the principles applicable in testing whether an employee’s restrictive covenant was reasonable: ‘The court cannot say that a covenant in one form affords no more than adequate protection to a covenantee’s relevant legitimate . .

Cited by:

Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Company, Employment

Updated: 10 April 2022; Ref: scu.253739

Winpar Holdings Ltd v Joseph Holt Group plc: CA 24 May 2001

An offer was made to purchase the entire share capital of a company, but the offer allowed for different arrangements for service on shareholders in certain foreign countries because of difficulties in complying with local regulatory provisions. The appellants sought to argue that no offer had been properly made so as to bind all shareholders to sell after acceptance by the majority. It was held that the variation was justified and did not vitiate the offer. Those who had not received direct notice were still able to participate and vote. The validity of an offer could not depend upon its being successfully communicated to each and every shareholder. The offeror should make an attempt to contact each shareholder, including those living abroad.

Citations:

Times 24-May-2001, Gazette 12-Jul-2001

Statutes:

Companies Act 1985 428

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Joseph Holt Plc; Winpar Holdings Ltd v Joseph Holt Group Plc ChD 15-Nov-2000
An offer was made to purchase the entire share capital of a company, but the documents were not served on shareholders in certain foreign countries because of difficulties in complying with regulatory provisions. Having received acceptance from more . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 April 2022; Ref: scu.90572

White v Minnis and Another: ChD 18 Jan 1999

On the dissolution of a partnership, the valuation of assets was to be in accordance with the partnership deed but in the absence of explicit guidance property was to be valued at the date of dissolution and not at an historic value used in accounts. Park J ‘Where a partner dies or retires and his interest in the partnership assets accrues to the continuing partners, the amount payable to him is determined by reference to the partnership agreement. However the court leans to the conclusion that the agreement requires the amount payable to be ascertained by reference to the true current values of the assets, not by reference to their historic costs. That conclusion can be displaced by contrary provisions in the partnership agreement, but the provisions need to be clear. If the wording is broadly neutral as between taking current values or historic costs, it is very likely that the court will take current values. Further, a decision to take historic costs is unlikely to be justified merely on the ground that in earlier balance sheets which have not been relevant to the death or retirement of a partner the book values of assets have been their historic costs, without revaluations to current costs.’

Judges:

Park J

Citations:

Times 18-Jan-1999, Gazette 27-Jan-1999, [1999] 1 WLR 2079

Jurisdiction:

England and Wales

Citing:

Cited – Cruikshank v Sutherland HL 1923
The executors of a deceased partner of the respondents sought relief. The assets had been taken over from an earlier partnership between the parties and had been brought into the accounts of the new partnership at the values at which they had stood . .
Cited – Attorney-General v Boden 1912
There was a partnership between a father and his two sons. The sons were obliged to devote their whole time to the practice, the father only so much time as he wished. On his death the sons were to pay out to his estate the value of the capital but . .

Cited by:

Appeal from – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 April 2022; Ref: scu.90464

Small And Others v Attwood And Others: 1 Nov 1832

Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and the other parties. Where the partners in a Company or partnership are numerous, a bill may be filed by some of the partners on behalf of themselves and the other partners to rescind the contract. In a case where it is manifest, from the circumstances, and the evidence, that it is for the benefit of all the partners that the contract should be rescinded. A contract for the sale of iron mines was rescinded on the ground of fraudulent misrepresentations of the value of the estate, and of the prices of ironstone and other materials, and of the quantities of materials required for the manufacture of iron, notwithstanding possession had been taken, the mines worked, and other acts of ownership had been exercised, and notwithstanding some acts in confirmation of the contract.

Citations:

[1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Attwood v Small And Others 8-Nov-1827
. .
See Also – Attwood v Small And Others 9-Aug-1827
An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
Held: That although with the clause referred . .
See Also – Attwood v Small 12-Dec-1827
Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
See Also – Small And Others v Attwood And Others 3-May-1828
Amendment of pleadings . .

Cited by:

Cited – Attwood v Small and Others HL 1-Mar-1838
The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
Held: . .
See Also – Attwood v Small etc 22-Mar-1838
. .
See Also – Attwood v Small 1840
. .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 10 April 2022; Ref: scu.319723

Jenkin v Pharmaceutical Society of Great Britain: 1921

At common law that a member of a company incorporated by Royal Charter is entitled to an order restraining the commission of acts outside the scope of the charter which may result in the forfeiture of the charter and the destruction of the society.

Citations:

[1921] 1 Ch 392

Jurisdiction:

England and Wales

Cited by:

Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 April 2022; Ref: scu.221577

Dickson v Pharmaceutical Society of Great Britain: HL 1970

The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and submitted it in the form of a motion to a specially convened meeting of the members. The effect of the rule would be that new pharmacies would have to be situated in physically distinct premises and their trading activities confined to pharmaceutical and traditional goods as defined in a report of one of the society’s committees. The main object of the society was ‘to maintain the honour and safeguard and promote the interests of the members in the exercise of the profession of pharmacy’. The respondent, a member of the society, brought an action for a declaration that the motion was ultra vires the society’s objects and in unreasonable restraint of trade.
Held: The rules against arrangement imposing restrictions on trade are not limited to particular kinds of restraint, and are not confined to contractual arrangements but apply to all restraints of trade, howsoever imposed. If the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid.
Lord Reid said: ‘ There are about 29,000 registered pharmacists. Some, such as those employed in hospitals, have no other duties than the professional task of dispensing. But the typical pharmacist owns or is employed in a chemist’s shop where goods other than dispensed medicines are sold to the public. Such goods have been divided into three classes: first ‘professional’, which include, besides medicines and sick room requirements, agricultural, horticultural, and industrial chemicals and various scientific and other appliances; secondly, ‘traditional’, which, largely for historical reasons include cosmetics and photographic requisites; and thirdly ‘non-traditional’, which include a wide variety of articles which many pharmacists have found it profitable and convenient to sell in chemist’s shops. So most pharmacists act in a dual capacity, combining retail trading with their professional work. That pharmacists should be engaged in trade is regarded by many pharmacists as undesirable. But it is generally recognised that comparatively few chemist’s shops could survive without engaging in some degree of trading . .
In every profession of which I have any knowledge there is a code of conduct, written or unwritten, which makes it improper for members of the profession to engage in certain activities in which ordinary members of the public are quite entitled to engage. Normally this is regarded as a domestic matter within the profession. But it appears to me that if a member of a profession can show that a particular restriction on his activities goes beyond anything which can reasonably be related to the maintenance of professional honour or standards, the court must be able to intervene, and in the present case there is a question whether these restrictions are within the objects of the society. In Jenkin v. Pharmaceutical Society of Great Britain it was held that certain attempts to regulate trading by the members were ultra vires. But the respondent does not dispute that the society is entitled to regulate such trading activities in so far as that is reasonably necessary to achieve the society’s objects set out in the Charter. So it becomes a question whether these restrictions can properly be related to the maintenance or improvement of the status of the profession of pharmacy.
That these restrictions are in restraint of trade cannot be doubted. Any pharmacist who opens a new chemist’s shop can only sell professional or traditional goods in it, and in any existing chemist’s shop no new classes of non-traditional goods can be sold unless the council consents. This restraint may severely hamper the shopkeeper, and indeed it may make the business so unprofitable that the shop has to be closed. I need not consider the wider aspects of public interest, whether that might seriously inconvenience members of the public who wish to have prescriptions dispensed or to buy medicines.’

Judges:

Lord Reid

Citations:

[1970] AC 403

Jurisdiction:

England and Wales

Cited by:

Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Company, Commercial

Leading Case

Updated: 10 April 2022; Ref: scu.221578

Philip Morris Products Inc and Another v Rothmans International Enterprises Ltd and Another: ChD 10 Aug 2000

For the purposes of the Takeover Panel, a party could trigger the provision which applied on obtaining more than 30% of the share capital of a target company, where his shareholding, together with that of a party with whom he was acting in concert exceeded that limit. The provisions were activated if it could be shown that there was an understanding with another shareholder as to the exercise of voting rights.

Citations:

Times 10-Aug-2000, Times 21-Sep-2000

Jurisdiction:

England and Wales

Citing:

Appealed to – Philip Morris Products Inc and Another v Rothmans International Enterprises Limited and Another CA 4-Jul-2001
One tobacco company licensed another to distribute and sell its products in the UK. When control of the licensee changed, the licensor sought to revoke the licence. The licensee appealed against a refusal of an injunction to maintain the licence. . .

Cited by:

Appeal from – Philip Morris Products Inc and Another v Rothmans International Enterprises Limited and Another CA 4-Jul-2001
One tobacco company licensed another to distribute and sell its products in the UK. When control of the licensee changed, the licensor sought to revoke the licence. The licensee appealed against a refusal of an injunction to maintain the licence. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 April 2022; Ref: scu.84706

Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association: QBD 13 Jan 1994

The court should distinguish the concepts of locus standi and capacity when considering applications for judicial review. An unincorporated association is not a legal person and may not seek Judicial Review.

Citations:

Independent 13-Jan-1994, Times 21-Jan-1994

Statutes:

Rules of the Supreme Court Order 53 3(7)

Cited by:

See Also – Regina v Darlington Borough Council Ex Association of Darlington Tax Owners and Another (No 2) QBD 14-Apr-1994
An unincorporated association although not a legal person with the capacity to sue in judicial review, may still suffer an order for costs. . .
See Also – Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association (No 2) 1995
The court made an order for costs against the members of the Association on rejection of its request for permission to bring judicial review proceeds, even though he had found that the Association was not a legal person capable of bringing such . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Company

Updated: 09 April 2022; Ref: scu.86507

In Re Seagull Manufacturing Co Ltd (In Liquidation); Tucker: CA 22 Feb 1993

The court has jurisdiction to order the public examination of a company director in in a compulsory liquidation about the affairs of the company, even though he might not be within the jurisdiction. The court found no reasons of comity which would prevent those who voluntarily were officers or otherwise participated in the formation or running of an English company to be capable of being summoned by the English court for public examination. Further, Parliament had provided for the winding up of foreign companies, where there was a sufficient connection with the jurisdiction, knowing that section 133 should apply in such a case, thus indicating an intention that officers who may well not be within the jurisdiction should be examined publicly.
Peter Gibson J said: ‘Where a company has come to a calamitous end and has been wound up by the court, the obvious intention of this section was that those responsible for the company’s state of affairs should be liable to be subjected to a process of investigation and that investigation should be in public. Parliament could not have intended that a person who had that responsibility could escape liability to investigation simply by not being within the jurisdiction. Indeed, if the section were to be construed as leaving out of its grasp anyone not within the jurisdiction, deliberate evasion by removing oneself out of the jurisdiction would suffice. That seems to me to be a wholly improbable intention to attribute to Parliament. Further, section 133 must be construed in the light of circumstances existing in the mid-1980s when the legislation was enacted. By use of the telephone, telex and fax machines English companies can be managed perfectly well by persons who need not set foot within the jurisdiction. There is no requirement that an officer of an English company must live in England, nor of course need an officer of an overseas company which may be wound up by the court. Such a company is very likely to have officers not within the jurisdiction.’

Judges:

Dillon LJ, Peter Gibson J

Citations:

Ind Summary 22-Feb-1993, [1993] Ch 345

Statutes:

Insolvency Act 1986 133

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Seagull Manufacturing Co Ltd ChD 1992
The court considered the power of an English court over a foreign resident under section 133.
Held: In contrast with the private examination provisions, on its true construction section 133 applies to those who are within the class of persons . .

Cited by:

See Also – Re Seagull Manufacturing Co Ltd ChD 3-May-1993
A company director who was resident overseas may be subject to disqualification proceedings. . .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 09 April 2022; Ref: scu.85879

Mubarak v Mubarak: FD 30 Nov 2000

In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful to ensure that there were no third parties whose position could be prejudiced by the making of such an order. The power to lift the corporate veil is less clear in the Family Division. Here, however, there were genuine third party rights, including the commercial creditors and directors with fiduciary duties, who opposed the ceasing of the company’s trade. ‘[C]ompany law is predominantly concerned with parties at arm’s length in a contractual or similar relationship’ but family law is ‘concerned with the distributive power of the court as between husband and wife applying discretionary consideration to what will often be a mainly, if not entirely, family situation.’ and ‘it is quite certain that company law does not recognise any exception to the separate entity principle based simply on a spouse’s having sole ownership and control.’
Bodey made several comments about the situation: ‘Looking at the totality of the husband’s presentation, it was, in my view, sufficient to amount to a concession that he was to be treated for the purpose of the proceedings as the ultimate owner, not only of the company shares but also of the assets belonging to the companies. However, that concession cannot, in my view, be binding on the companies: he was not a director of DIL at the material time and did not, on the evidence, have the authority to bind either Board of Directors in saying that company assets could be seised and used for the satisfaction of his personal liabilities towards the wife.’ and
‘The fact that the husband purported and appeared to be able during the various ‘stay’ hearings to use and control company assets as if his own and the fact that the directors may in practice not have objected to that course whilst a stay was in place or in the offing, does not prove that in the last analysis he was able to establish and enforce against the companies the right in law to do so.
So although the earlier findings based on the husband’s concession that he was the owner of the companies are res judicata against him, they are not binding on the companies.’ and
‘Mr Aiyer has been described on behalf of the wife as a mere cipher of the husband, the implication being that he is masterminding the companies’ intervention and opposition to the seizure of its jewellery simply to assist the husband in avoiding his proper obligations to the wife. However, having seen Mr Aiyer, albeit briefly (and whilst I do not doubt he has discussed with the husband the tactical advantages of the companies fighting to retain the stock and that he is acting in line with the husband’s wishes) I conclude that, nonetheless, he is also genuinely concerned with his duty as a director to safeguard company assets.
I did not get the impression from him that the board’s resistance to the order is driven purely by instructions from the husband, nor purely by the board’s wish to help the husband in resisting payment of the lump sum order.’
Bodey J concluded: ‘At the end of the day, both companies are bona fide trading companies incorporated well before the matrimonial difficulties of the husband and wife. DIL is indeed incorporated outside this jurisdiction and the husband is not a director. It is not suggested that they are as such being used as a sham or device, albeit that their existence is very convenient to the husband. In my judgment, there do exist genuine third party rights and interests which ought to be respected, namely the interests of bona fide commercial creditors (one of them secured on the jewellery) and the position of directors who have fiduciary duties and who oppose the seizure of stock in trade. The facts of this case are far away from those of Green v Green [1993] 1 FLR 326 which Mr Pointer asks me to follow.
Applying the above proposed approach as regards lifting the corporate veil to the evidence now before me and having heard full legal argument, I come to the conclusion that this case does not fall within the necessarily circumscribed circumstances in which lifting the veil would be acceptable. However much the court may wish to assist a wife and children where a lump sum has not been paid, I am satisfied that doing so here, whensoever it may be permissible, would be a step too far in all the circumstances.’

Judges:

Bodey J

Citations:

Times 30-Nov-2000, [2001] 1 FCR 193, [2001] 1 FLR 673

Cited by:

Cited – Corbett v Corbett CA 28-Feb-2003
After an order had been made for periodical payments to the wife, the former husband entered into a new relationship, but began to get in financial difficulties, and arrears. Over the course of time, he did not make effective disclosure of his . .
Cited – Ellis v Ellis CA 24-Jun-2005
The defendant appealed a suspended committal order in respect of his failure to pay maintenance. The husband had unilaterally reduced payments at the same time as withdrawing his application to vary the order.
Held: The defendant simply piled . .
Cited – G v G and Another FdNI 25-Oct-2003
There had been a long but argumentative marriage, and the parties disputed distribution of the assets on an ancillary relief application.
Held: The husband could not claim to discount shareholdings as a minority shareholding where he also . .
Appeal from – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
See Also – Mubarak v Mubarik FD 9-May-2006
. .
See Also – Mubarak v Mubarik and others FD 12-Jan-2007
. .
See Also – Mubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .
Cited – Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Company, Family

Updated: 09 April 2022; Ref: scu.84104

Macpherson and Another v European Strategic Bureau Ltd: CA 14 Sep 2000

Directors who made agreements under which they were to be paid past consultancy fees and to pay other liabilities, in preference if necessary to other creditors, and without making provision for the costs of completing existing obligations, operated as an informal winding up of the company, and it was in breach the directors duty to the company, being for the benefit of the directors rather than the company.

Citations:

Gazette 14-Sep-2000

Statutes:

Companies Act 1985 263(1)

Jurisdiction:

England and Wales

Company

Updated: 09 April 2022; Ref: scu.83291

Director General of Fair Trading v Pioneer Concrete (UK) Ltd, sub nom Supply of Ready Mixed Concrete (No 2): HL 25 Nov 1994

The actions of company employees, acting in the course of their employment and in contempt may put the company employer in contempt also, and even though the company may have given explicit instructions that no infringing agreement should be entered into.

Citations:

Independent 30-Nov-1994, Times 25-Nov-1994, Gazette 05-Jan-1995, [1995] 1 AC 456

Citing:

Appeal from – In Re Supply of Ready Mixed Concrete (No 2) CA 8-Jul-1993
An employer was not liable for its employee’s action in contempt of court against the company’s clear instructions with regard to anti-competitive agreements. . .
See Also – Director General of Fair Trading v Smiths Concrete: re Supply of Ready Mixed Concrete 1992
For a person to be found in contempt of a court order it is necessary to show that that he knew of the relevant order and with that knowledge he intended to do the act which amounted to a breach of the court order. It is not necessary to show that . .

Cited by:

Cited – Bird v Hadkinson ChD 4-Mar-1999
A party ordered to make disclosure in Mareva proceedings, could be found in contempt where the answers given were technically true, but misleading because of their incompleteness. The party has a clear duty to provide full and accurate disclosure. A . .
Cited – Gulf Azov Shipping Company Ltd v Idisi ComC 22-Nov-2000
Application to commit defendant to prison for contempt of court. . .
Cited – Ferguson v British Gas Trading Ltd CA 10-Feb-2009
Harassment to Criminal Level needed to Convict
The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Company, Vicarious Liability

Updated: 08 April 2022; Ref: scu.82207

In Re T and D Industries Plc and Another: ChD 23 Nov 1999

An administrator appointed under the Act was free to dispose of a company’s assets without first making an application to court for permission, and without first obtaining approval of his proposal from the creditors. The administrator’s role would require difficult and sometimes urgent decisions.

Judges:

Neuberger J

Citations:

Times 23-Nov-1999, Gazette 01-Dec-1999

Statutes:

Insolvency Act 1986 8(3)

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 08 April 2022; Ref: scu.82217

In Re Pantmaenog Timber Company Ltd: ChD 15 Dec 2000

The duties of the Official Receiver in company director disqualification proceedings were related to the gathering of information regarding the trading of a company. The powers given to the receiver did not include the power to commence proceedings, nor to seek out documents with the intention of defending an application for strike out of director disqualification proceedings. Orders made on an application for discovery of such documents were set aside.

Citations:

Gazette 15-Dec-2000, Times 23-Nov-2000

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re Pantmaenog Timber Co Ltd CA 25-Jul-2001
The Official Receiver could not use the powers given to him for the purposes of his insolvency duties to require production of documents form solicitors and accountants, to satisfy duties placed on him by the Secretary of State for the purpose of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 08 April 2022; Ref: scu.82109

In Re Pamstock Ltd: ChD 5 Jan 1993

A failure to file his company’s accounts is a serious default, and is sufficient to warrant the disqualification of a company secretary from acting as a company director. The filing of accounts is a substantial protection for those trading with limited companies.

Citations:

Times 05-Jan-1993

Statutes:

Company Directors Disqualification Act 1986, Companies Act 1985

Jurisdiction:

England and Wales

Company

Updated: 08 April 2022; Ref: scu.82108

In Re Duckwari Plc: ChD 23 Jul 1996

The company had purchased property, but it suffered a fall in value.
Held: The fall was irrecoverable despite the fact that it had been purchased from a director, because it had been made at full value.

Citations:

Times 23-Jul-1996

Statutes:

Companies Act 1985 322(3)(b)

Jurisdiction:

England and Wales

Citing:

Appealed to – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .

Cited by:

Appeal from – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 April 2022; Ref: scu.81850

In 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 order.
The court approved the submission by the parties to the Court an agreed statement of facts upon which the Court is invited to assess what order should be made.
Ferris J said: ‘the Secretary of State can and should cause an application for a disqualification order to be abandoned if it ceases to appear to him that the making of a disqualification order against the respondent to that application is ‘expedient in the public interest’. I was told that the Secretary of State does in fact act upon this principle and I have no doubt that this is so. But the Secretary of State has no general power to compromise a claim for a disqualification order which he continues to regard as being expedient in the public interest. In particular he cannot accept an undertaking in lieu of a disqualification order, because that would not protect the public in the way that the disqualification order does by virtue of the consequences presented by section 13 and section 15. He cannot decide that particular conduct does or does not amount to unfitness, for it is the court, not the Secretary of State which has to be satisfied on the relevant matters. He cannot agree that matters to which regard must be had by virtue of section 9(1) should be left out of account and he cannot bargain with the respondent concerning the length of any period of disqualification, for it is the court which has to decide this, subject to the statutory limits.
In disqualification proceedings, therefore, there is no scope for the parties to reach an agreement and then ask the court to embody their agreement in a consent order. The court itself has to be satisfied, after having regard to the prescribed matters and other facts which appear to be material, that the respondent is unfit to be concerned in the management of a company; and the court itself must decide the period of disqualification if it decides to make a disqualification order.’

Judges:

Ferris J

Citations:

Gazette 13-Oct-1993, [1994] 1 WLR 172, [1993] 4 All ER 499

Statutes:

Company Directors Disqualificatin Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – Davies v The United Kingdom ECHR 16-Jul-2002
The applicant had been subject to applications for his disqualification from acting as a company director. The Secretary of State waited until the last day before issuing proceedings, and the proceedings were then delayed another three years pending . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
developed – 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. . .
Cited – The 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 . .
Cited – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Cited – Kluk v Secretary Of State for Business, Enterprise and Regulatory Reform ChD 20-Dec-2007
. .
Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012
The directors appealed against disqualification orders made against them under the 1986 Act. Their company had become insolvent, owing substantial arrears of PAYE and NI contributions. The revenue had said that they had paid other creditors first. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 April 2022; Ref: scu.81805

In Re Britannia Homes Centres Ltd and the Company Directors Disqualification Act 1986; Official Receiver v Mccahill: ChD 29 Jun 2000

An appeal against an order disqualifying the director of a company in an application for leave to act as a director should be made to the High Court. Where the application was so as to allow the director to act on a company in the course of winding up proceedings, the court to which the application should be made was that hearing the winding up proceedings.

Citations:

Gazette 29-Jun-2000

Statutes:

Company Directors Disqualification Act 1986

Company

Updated: 08 April 2022; Ref: scu.81758

ICI Plc v Colmer (Inspector of Taxes): HL 15 Mar 1996

A ‘Holding company’ under the Act meant a company resident in the UK; A reference was made of the issues to the European Court.

Citations:

Times 15-Mar-1996

Statutes:

Income and Corporation Taxes Act 1970 285(5)(b)

Citing:

Appeal from – Imperial Chemical Industries v Colmer (Inspector of Taxes) CA 9-Aug-1993
Group tax relief was available despite other subsidiary companies within the same group being offshore. . .

Cited by:

Reference from – Imperial Chemical Industries v Colmer ECJ 16-Jul-1998
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .
Reference from – Metallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
See Also – Pickford v Imperial Chemical Industries Plc HL 30-Jun-1998
In the absence of conclusive evidence establishing a cause of a condition, the judge was free to find that causation was not established and that the claim was lost. There was no necessary obligation on an employer to have procedures which might . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 April 2022; Ref: scu.81593

Griffiths and Another v Yorkshire Bank Plc and Others: ChD 7 Oct 1994

The court considered the application of a company’s assets as between debenture holders and other chargees upon the insolvency of the company. It was the essence of a floating charge that the company could create a prior fixed charge over the asset. Where a second floating charge had been created and was crystallised, becoming a fixed charge, that fixed charge then took priority over the floating charge retained by the first debenture, and that priority was not lost if the first charge was itself subsequently crystallised. Commenting on Portbase: ‘Chadwick J. envisaged two possibilities. One is a restriction in the floating charge of which the holder of the fixed charge had notice, i.e. the 1977 debenture. In none of the cases to which he had earlier referred was this possibility considered or in issue. In my judgment it is not the law that such a restriction affects priorities as a matter of property law whatever may be the contractual result. It is of the essence of a floating charge that proprietary interests having priority over any interest of the holder of the floating charge may be created.’

Judges:

Morritt J

Citations:

Gazette 07-Oct-1994, [1994] 1 WLR 1427

Jurisdiction:

England and Wales

Citing:

Distinguished – In Re Portbase Clothing Ltd; Mould v Taylor 1993
The company had given two debentures, one fixed and one floating. Their priority was fixed by a deed of priority. On insolvency the liquidator sought direction as to the application of the assets.
Held: The deed made the bank’s floating charge . .

Cited by:

Cited – National Westminster Bank Plc v Spectrum Plus Ltd; In re Spectrum Plus CA 26-May-2004
The court was asked whether a charge given over book debts in a debenture was floating or fixed.
Held: Since the charge asserted some control over receipt of the payments, it was a fixed charge. Upon payment into the account, title to the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 08 April 2022; Ref: scu.81043

Government of Mauritius v Union Flacq Sugar Estates Co Ltd; Same v Medine Shares Holding Co: PC 16 Sep 1992

A statutory provision was said to have unlawfully deprived the claimant of property in the form of voting rights in a company of which it was a shareholder. The company owned 50% of the ordinary shares and associated voting rights in its parent company. The Companies Act worked to reduce the shareholding to 40%, and the company therefore lost effective control of its parent company. Its shareholding was therefore reduced in value, and the claimant said that it had been deprived of property without compensation in breach of the constitution.
Held: Voting rights are only an incident of the ownership of the shares, and nor were they an interest in or right over the company’s property. Only the shareholding itelf is property. The loss of control of a company even though it undermines the value of a shareholding is not itself a loss of property. The change had not deprived the plaintiff of property and was not unconstitutional.

Citations:

Gazette 16-Sep-1992, [1992] 1 WLR 903, (1993) 109 LQR 202

Jurisdiction:

Commonwealth

Company, Constitutional

Updated: 08 April 2022; Ref: scu.80953

Fletcher and Another v Royal Automobile Club: ChD 3 Mar 1999

Where a court order for the re-arrangement of a company was alleged to have been obtained by fraud, the order approving the scheme was not beyond challenge, and the court had power to set it aside in appropriate circumstances.

Citations:

Times 03-Mar-1999, Gazette 17-Mar-1999

Statutes:

Companies Act 1985 425(2)

Jurisdiction:

England and Wales

Company

Updated: 08 April 2022; Ref: scu.80600

Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd: OHCS 21 Apr 1995

An arrangement creating a common economic interest is not enough to create partnership.

Citations:

Times 21-Apr-1995

Jurisdiction:

Scotland

Citing:

See Also – Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Ltd HL 22-Jul-1993
A walkway had existed from the town centre to residential areas. When the land was acquired the defendant new owners sought to close the walkway. The authority asserted that a public right of way had been acquired.
Held: There was no need to . .

Cited by:

Appeal from – Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd (Scotland) HL 16-Jul-1998
(Scotland) The appellants sought compensation under the law of unjustified enrichment for losses sustained as a result of the exercise against them of a conventional irritancy.
Held: Where a landlord recovered possession of land under lease by . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 April 2022; Ref: scu.80088

Arab Bank Plc v Mercantile Holdings Ltd and Another: Chd 11 Oct 1993

A foreign subsidiary can give financial assistance for purchase of a company’s shares. Assistance to buy shares in the parent company by a subsidiary is not ipso facto assistance from parent company.

Citations:

Gazette 23-Mar-1994, Times 19-Oct-1993, Ind Summary 11-Oct-1993

Statutes:

Companies Act 1985 151

Jurisdiction:

England and Wales

Company

Updated: 08 April 2022; Ref: scu.77845

Re B Johnson and Co (Builders) Ltd: CA 1953

A receiver of property is not managing the mortgagor’s property for the benefit of the mortgagor, but the security, the property of the mortgagee, for the benefit of the mortgagee. Section 333 was a procedural section which created no new cause of action. A case of common law negligence was not within the section.

Judges:

Jenkins LJ

Citations:

[1953] Ch 634

Statutes:

Companies Act 1948 333

Jurisdiction:

England and Wales

Cited by:

Cited – Downsview Nominees Ltd and Another v First City Corporation Ltd and Another PC 19-Nov-1992
(New Zealand) The holder of a second debenture appointed receivers to the assets. The first debenture holder then also appointed receivers not to obtain repayment of its debt, but to disrupt the work of the first appointed receivers and in order to . .
Cited – Oldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 08 April 2022; Ref: scu.187042

Shannan and Others v Viavi Solutions UK Ltd and Others: CA 28 Mar 2018

The court was asked whether the definitive deed and rules of the Wandel and Goltermann Retirement Benefits Scheme (the ‘Scheme’), dated 15 September 1999 (the ‘1999 Deed’), was validly executed so as to amend the governing provisions of the Scheme. The dispute centres around whether Wandel and Goltermann Management Limited (‘Management’) was the appropriate company to execute the 1999 Deed.

Citations:

[2018] EWCA Civ 681

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 07 April 2022; Ref: scu.608363

Skatteministeriet v T Danmark: ECJ 1 Mar 2018

Opinion – Approximation of Laws – Reference for a preliminary ruling – Directive 2011/96 / EU on the common system of taxation applicable to parent companies and subsidiaries of Member States (referred to as the Parent-Subsidiary Directive) – Necessity of an effective beneficiary in the event of dividend payments – Misuse tax adjustment possibilities – Criteria relating to the existence of an abuse committed with the aim of evading taxation at source – Impact of the comments of the OECD model convention on the interpretation of a tax directive European Union – Direct Application of a Non-Transposed Directive Provision – Interpretation in Accordance with EU Law of National Principles for the Prevention of Abuse

Citations:

ECLI:EU:C:2018:144, [2018] EUECJ C-116/16 – O

Links:

Bailii

Jurisdiction:

European

Company

Updated: 06 April 2022; Ref: scu.606030

Julien and Others v Evolving Tecknologies and Enterprise Development Company Ltd: PC 19 Feb 2018

Trinidad and Tobago – Commencement of limitation period in claim based upon allegation of breach of company director’s or fraud.

Judges:

Lord Kerr, Lord Reed, Lord Hughes, Lord Lloyd-Jones, Lord Briggs

Citations:

[2018] UKPC 2

Links:

Bailii

Jurisdiction:

Commonwealth

Limitation, Company

Updated: 05 April 2022; Ref: scu.605690

The Secretary of State for Business, Energy and Industrial Strategy v Rigil Kent Acquisitions Ltd and Others: ChD 19 Dec 2017

Applications for the appointment of a provisional liquidator pending the hearing of various petitions for the winding up of a group of companies, on the public interest ground

Judges:

Marcus Smith J

Citations:

[2017] EWHC 3636 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 135

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 05 April 2022; Ref: scu.605339

The English Electric Company Ltd v Alstom UK: QBD 10 Jul 2017

The clamant had been found liable for malignant mesothelioma incurred by a former employee. It now sought a contribution or indemnity from another former employer.

Judges:

Waksman QC HHJ

Citations:

[2017] EWHC 1748 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Company

Updated: 05 April 2022; Ref: scu.589919

DSA Investments Inc (A Company Registered Under The Laws of The British Virgin Islands) v Optima Worldwide Group Plc and Others: ChD 12 Nov 2020

Judgment on various matters arising from the application by the Claimant for a charging order over any beneficial interest of the First Defendant in shares of Oracle Power plc.

Judges:

Deputy Master Linwood

Citations:

[2020] EWHC 2770 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 05 April 2022; Ref: scu.655673