Category: Company

Mistral Asset Finance Ltd v Registrar of Companies and Another: ChD 12 Nov 2020

The Claimant sought a declaration that it remains entitled to a legal mortgage of leasehold property following the dissolution of the mortgagor, Buzzlines Coaches Limited.

Judges:

His Honour Judge Halliwell sitting as a Judge of the High Court

Citations:

[2020] EWHC 3027 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 1017

Jurisdiction:

England and Wales

Company, Land, Insolvency

Updated: 03 April 2022; Ref: scu.655674

HJ Symons v Barclays Bank: Admn 2003

Judges:

Cooke J

Citations:

[2003] EWHC 1249 (Comm)

Jurisdiction:

England and Wales

Cited by:

Cited – Hill Street Services Company Ltd v National Westminster Bank Plc and Burjor Mistry ChD 19-Oct-2007
The claimant company said that the bank had allowed money to be removed from its account without authority. Originally it said the second defendant, its former director had authrised the payments. On the second defendant denying this, the company . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 03 April 2022; Ref: scu.260018

Ashdown and Others v Griffin and Others: ChD 19 Oct 2017

Judgment on the trial as to quantum following a decision on liability in relation to a petition under the Companies Act 2006, section 994, complaining of conduct unfairly prejudicial to the interests of the petitioners, as to their shares in a company

Judges:

Paul Matthews HHJ

Citations:

[2017] EWHC 2601 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 01 April 2022; Ref: scu.599617

Rakusens Ltd v Baser Ambalaj Plastik Sanayi Ticaret AS: CA 11 Oct 2001

A company had sought and obtained leave to serve proceedings on a foreign based company, by serving documents on a local agent. The local agent was an independent contractor, who received and transmitted orders to the company, but who, themselves, had no authority to bind the company in contract.
Held: The section allowed service at a ‘place of business’ within the jurisdiction. As a commission agent, unable to conclude business for the defendants, the address was not a place of business of the defendants. The claim was not validly served.

Judges:

Buxton, Arden, LJJ, Bodey J

Citations:

Gazette 01-Nov-2001, Times 09-Nov-2001, [2001] EWCA Civ 1820, [2002] 1 BCLC 104

Links:

Bailii

Statutes:

Companies Act 1985 695(2)

Jurisdiction:

England and Wales

Citing:

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

Litigation Practice, Company

Updated: 01 April 2022; Ref: scu.166723

The Welsh Ministers v Price and Another: CA 7 Nov 2017

The Court was asked a point of practice as to the circumstances in which it is permissible and, where permissible, appropriate to join a third party to proceedings for restoration of a dissolved company to the register of companies.

Judges:

Sir Terence Etherton MR, Longmore, Irwin LJJ

Citations:

[2017] EWCA Civ 1768

Links:

Bailii

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 01 April 2022; Ref: scu.599379

Odutola v Hart and Others: ChD 27 Jul 2018

Application to strike out a claim in unfair prejudice brought by one member of a residents’ association against certain current and former directors of the association.

Judges:

Sarah Worthington QC HHJ

Citations:

[2018] EWHC 2259 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 31 March 2022; Ref: scu.655447

In re Osiris Insurance Ltd: ChD 1991

The turn-out at the creditors meeting was low in number (35 out of 971) but creditors with claims worth about 41% of the total value attended the meeting.
Held: Neuberger J said: ‘It is true that the numbers of those who voted was pretty small compared to the number of those entitled to vote, but that is by no means unusual in the context of votes at meetings called pursuant to s 425. In any event, that does not call into question the fact that not a single scheme creditor thought it right to vote against the scheme. Furthermore, if one looks at the value of the scheme claims held by those who voted, they did represent a substantial proportion of those entitled to vote.’

Judges:

Neuberger J

Citations:

[1991] 1 BCLC 182

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 31 March 2022; Ref: scu.244200

Re Arrows Ltd (In Liquidation): Chd 1 Jul 1992

Liquidators seeking information from directors were allowed to undertake not to disclose any information gathered to the Serious Fraud Office. Such an undertaking having been given a former company director was not able to refuse to answer questions put to him.

Citations:

Times 01-May-1992, Gazette 01-Jul-1992

Statutes:

Insolvency Act 1986 236(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Re Arrows Ltd (No 4) CA 8-Apr-1993
A Civil Court cannot stop the Serious Fraud Office using evidence which had been gathered under compulsion during Insolvency interviews under s236. Any element of confidentiality was overriden. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 31 March 2022; Ref: scu.85714

Hindle v John Cotton Ltd: HL 3 Jul 1919

Viscount Finlay said: ‘Where the question is one of abuse of powers, the state of mind of those who acted, and the motive on which they acted, are all important, and you may go into the question of what their intention was, collecting from the surrounding circumstances all the materials which genuinely throw light upon that question of the state of mind of the directors so as to show whether they were honestly acting in discharge of their powers in the interests of the company or were acting from some bye-motive, possibly of personal advantage, or for any other reason.’

Judges:

Viscount Finlay, Viscount Cave, and Lords Dunedin, Shaw, and Wrenbury

Citations:

(1919) 56 Sc LR 625, [1919] UKHL 625

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – Eclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Cited – Mills v Mills 1938
(High Court of Australia) Where the main purpose of the directors’ resolution (in this case to increase the share base) is to benefit the company it matters not that it incidentally also benefits a director.
Dixon J pointed out the difficulties . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 30 March 2022; Ref: scu.595473

Garcia v Marex Financial Ltd: CA 26 Jun 2018

The claimant obtained judgment against the defendant company. Anticipating this the company owners were said to have stripped the company of its assets. They now resisted claims against themselves personally.

Judges:

Lewison, Lindblom, Flaux LJJ

Citations:

[2018] EWCA Civ 1468, [2018] 3 WLR 1412, [2018] WLR(D) 395, [2019] QB 173, [2018] BPIR 1495

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Company

Updated: 30 March 2022; Ref: scu.618831

Ultraleisure Ltd v Stapleton and Others: ChD 21 Jan 2009

Ultraleisure Limited (‘the company’) acting by its liquidator seeks relief against two former directors in respect of alleged misappropriations in excess of pounds 3m.

Judges:

David Richards J

Citations:

[2009] EWHC 67 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Torts – Other

Updated: 30 March 2022; Ref: scu.594616

Wilton UK Ltd v Shuttleworth and Others: ChD 4 Sep 2017

The Court was asked as to the validity, potential validity, or otherwise, of service of a claim form and particulars of claim in a CPR Part 7 claim. Service took place in proceedings brought as a derivative claim pursuant to Chapter 1 of Part 11 of the Companies Act 2006

Judges:

Davis-White QC HHJ

Citations:

[2017] EWHC 2195 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 30 March 2022; Ref: scu.594588

Chen v Ng: PC 17 Aug 2017

The parties disputed ownership of certain shares in a particular company

Judges:

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

Citations:

[2017] UKPC 27

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 29 March 2022; Ref: scu.593587

Berlusconi (Law Relating To Undertakings) 2: ECJ 3 May 2005

Company law – Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, after amendment, Article 44(2)(g) EC) – First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC – Annual accounts – Principle of a true and fair view – Penalties provided for in cases of false information on companies (false accounting) – Article 6 of First Directive 68/151 – Requirement that penalties for breaches of Community law be appropriate.

Citations:

C-391/02, [2005] EUECJ C-391/02

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – Berlusconi (Law Relating To Undertakings) 3 ECJ 3-May-2005
Europa Company law – Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, . .
Cited – Docherty, Regina v SC 14-Dec-2016
After conviction on his own admission for wounding with intent, and with a finding that he posed a threat to the public, the defendant was sentenced to imprisonment for public protection. Such sentences were abolished with effect from the day after . .
Lists of cited by and citing cases may be incomplete.

European, Company

Updated: 29 March 2022; Ref: scu.224804

Berlusconi (Law Relating To Undertakings) 3: ECJ 3 May 2005

Europa Company law – Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, after amendment, Article 44(2)(g) EC) – First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC – Annual accounts – Principle of a true and fair view – Penalties provided for in cases of false information on companies (false accounting) – Article 6 of First Directive 68/151 – Requirement that penalties for breaches of Community law be appropriate.

Citations:

C-403/02, [2005] EUECJ C-403/02

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Berlusconi (Law Relating To Undertakings) 2 ECJ 3-May-2005
Company law – Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, after amendment, Article 44(2)(g) EC) – First . .
Lists of cited by and citing cases may be incomplete.

European, Company

Updated: 29 March 2022; Ref: scu.224805

Criminal proceedings against Silvio Berlusconi and Others: ECJ 3 May 2005

ECJ References for a preliminary ruling: Tribunale di Milano (C-387/02 and C-403/02) and Corte d’appello di Lecce (C-391/02) – Italy. Company law – Article 5 of the EEC Treaty (subsequently Article 5 of the EC Treaty, in turn Article 10 EC) and Article 54(3)(g) of the EEC Treaty (subsequently Article 54(3)(g) of the EC Treaty, in turn, after amendment, Article 44(2)(g) EC) – First Directive 68/151/EEC, Fourth Directive 78/660/EEC and Seventh Directive 83/349/EEC – Annual accounts – Principle of a true and fair view – Penalties provided for in cases of false information on companies (false accounting) – Article 6 of First Directive 68/151 – Requirement that penalties for breaches of Community law be appropriate.

Citations:

C-387/02

Jurisdiction:

European

European, Company

Updated: 29 March 2022; Ref: scu.225054

A Company v Andy Thornton Contracts Ltd: ChD 20 Nov 2013

Company’s application to restrain advertisement of petition for its winding up.
Held: The application was dismissed. The amount established of any counterclaim wasnot enough to displace the debt claimed, leaving an excess sufficient to found the petition.

Judges:

Nugee J

Citations:

[2013] EWHC 4291 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insolvency

Updated: 28 March 2022; Ref: scu.592402

Deutsche Bank Ag v Sebastian Holdings Inc: ComC 28 Apr 2016

Judges:

Waksman QC HHJ

Citations:

[2017] EWHC 913 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 14-Aug-2009
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 1-Dec-2009
. .

Cited by:

See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 16-Dec-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 13-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.

Company, Banking

Updated: 27 March 2022; Ref: scu.588904

Immo Chiaradia SPRL and Another v Etat belge: ECJ 15 Jun 2017

ECJ (Annual Accounts of Certain Types of Companies – Principle That A True and Fair View Must Be Given : Judgment) Reference for a preliminary ruling – Directive 78/660/EEC – Annual accounts of certain types of companies – Principle that a true and fair view must be given – Principle that valuation must be made on a prudent basis – Issuing company of a share option recognising the grant date price of the option in the course of the accounting year in which the option is exercised or at the end of its period of validity

Citations:

ECLI:EU:C:2017:465, [2017] EUECJ C-444/16

Links:

Bailii

Jurisdiction:

European

Company

Updated: 27 March 2022; Ref: scu.588276

Baker Tilly UK Audit Llp and Others v Financial Reporting Council and Others: CA 7 Jun 2017

Principal ground of appeal: interpretation of paragraph 12(1)(f) of the Guidance issued by the Financial Reporting Council on the delivery of formal complaints – Key concept in dispute – ‘non-trivial’ failure to act competently

Judges:

Arden, King, Sales LJJ

Citations:

[2017] EWCA Civ 406

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 26 March 2022; Ref: scu.584532

Cosmetic Warriors Ltd and Another v Gerrie: CA 5 May 2017

This appeal concerns the true construction of shareholders’ rights of pre-emption contained in the Articles of Association of the two claimant companies, Cosmetic Warriors Limited and Lush Cosmetics Limited. The Articles of each company are in materially identical form. Article 5 states that no share in the company may be transferred except in accordance with the provisions which it lays down. In short, the other shareholders are given the opportunity to purchase the relevant shares at a ‘prescribed price’, which is to be determined in default of agreement by two independent chartered accountants. To the extent that the shares are not taken up at that price by the other shareholders, or sold at that price by the company to external purchasers of whom or which it approves, the vendor then has a 90-day period during which he may transfer them ‘to any person at any price (not being less than the prescribed price)’.

Judges:

Beatson, Lindblom, Henderson LJJ

Citations:

[2017] EWCA Civ 324

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 25 March 2022; Ref: scu.583650

Clegg v The Estate and Personal Representatives of Andrew Gregory Pache and Others: CA 11 May 2017

These proceedings arise out of the diversion by a company director (now deceased), in breach of his fiduciary duty to the company, of funds and business opportunities to another company in which he enjoyed a concealed beneficial interest.

Judges:

McCombe, Briggs, Thirlwall LJJ

Citations:

[2017] EWCA Civ 256

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 25 March 2022; Ref: scu.583648

G Attwood Holdings Ltd and Another v Woodward and Others: ChD 15 May 2009

The court was asked how far a director may go in the way of making preparations for future competition against the company of which he is a director, and how far the company is able to restrain such competition after the resignation of the director in the absence of a restraint covenant.

Judges:

John Martin QC

Citations:

[2009] EWHC 1083 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 24 March 2022; Ref: scu.581929

Blackwell v HM Revenue and Customs: CA 6 Apr 2017

The court was asked whether a taxpayer may, in computing the gain accruing to him on the disposal of shares, bring into account by way of deduction expenditure incurred by him in buying his release from a personal contractual obligation to a third party restrictive of his ability to vote or sell those shares.

Judges:

Longmore, Patten, Briggs LJJ

Citations:

[2017] EWCA Civ 232

Links:

Bailii

Jurisdiction:

England and Wales

Capital Gains Tax, Company

Updated: 24 March 2022; Ref: scu.581427

Power Adhesives Ltd v Sweeney and Others: ChD 31 Mar 2017

‘I heard the Claimant’s application for a declaration that the decision by the directors of the Claimant to issue 490,000 B shares having a nominal value of andpound;1 each was taken in breach of their fiduciary duties, is voidable and should be set aside. I granted the declaration sought by the company. This judgment explains my reasons for so doing.’

Judges:

Marsh CM

Citations:

[2017] EWHC 676 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 24 March 2022; Ref: scu.581330

Matthew Boulton, Esq and Others, Creditors of Samuel Garbet, A Bankrupt v Messrs Mansfield, Ramsay, and Co of Edinburgh,: HL 18 Apr 1787

Copartnery. – An agreement dissolved a Company, and transferred the retiring partner’s interest in stock, andc. of the concern, to the other partners, but provided that he was still to have a share of the profits of the concern. In a question with creditors, held, that the person so retiring was still a partner of the firm, and liable as such.

Citations:

[1787] UKHL 3 – Paton – 70

Links:

Bailii

Jurisdiction:

Scotland

Company, Insolvency

Updated: 23 March 2022; Ref: scu.581019

Regina v Minister of Agriculture and Fisheries, Ex parte Graham: CA 1955

On a true construction of section 104(5) of the Agriculture Act 1947 a sub-committee or a district committee of a county agricultural executive committee is not excluded from being ‘a person’ who may be appointed by the Minister to hear representations, notwithstanding that it was a fluctuating body of natural persons.

Citations:

[1955] 2 QB 140

Statutes:

Agriculture Act 1947 104(5)

Jurisdiction:

England and Wales

Cited by:

Cited – National Grid Gas Plc, Regina (on the Application of) v The Environment Agency Admn 17-May-2006
The claimant sought a judicial review of the decision to hold them responsible for necessary works of remediation. They were statutory successors to British Gas Corporation.
Held: The legislation clearly attempted to hold the contaminator . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Company

Updated: 23 March 2022; Ref: scu.242436

Dunford and Elliott v Johnson and Firth Brown: CA 1977

A report which had been prepared confidentially was disclosed to 43 per cent of shareholders of a company (the institutional shareholders), but not the others, who then complained to the court.
Held: The others were entitled to the information: ‘This widespread use of the information drives a hole into the blanket of confidence; especially when that information is being used – or, shall I say misused – for the benefit some potential shareholders, and not for the benefit of the others. So much so that it would not be reasonable that the stipulation for confidence should be enforced.’

Judges:

Lord Denning MR

Citations:

[1977] 1 Lloyd’s Rep. 505

Jurisdiction:

England and Wales

Cited by:

Cited – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 23 March 2022; Ref: scu.200341

Newbigging v Adam: CA 1886

A party seeking rescission of a contract must give back all that he received. The purpose of rescission is still to restore the parties as nearly as possible to the position in which they were before the contract was made. Bowen LJ said: ‘when you come to consider what is the exact relief to which a person is entitled in a case of misrepresentation it seems to me to be this, and nothing more, that he is entitled to have the contract rescinded, and is entitled accordingly to all the incidents and consequences of such rescission. It is said that the injured party is entitled to be replaced in statu quo. It seems to me that when you are dealing with innocent misrepresentation you must understand that proposition that he is to be replaced in statu quo with this limitation – that he is not to be replaced in exactly the same position in all respects, otherwise he would be entitled to recover damages, but is to be replaced in his position so far as regards the rights and obligations which have been created by the contract into which he has been induced to enter. That seems to me to be the true doctrine, and I think it is put in the neatest way in Redgrave v Hurd .’

Judges:

Bowen LJ

Citations:

(1886) 34 Ch D 582

Jurisdiction:

England and Wales

Cited by:

Appeal from – Adam v Newbigging HL 1988
There was a sale of a share in a partnership, which had become insolvent since the contract.
Held: The House ordered rescission and mutual restitution, though the misrepresentation was not fraudulent, and it gave ancillary directions so as to . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Lists of cited by and citing cases may be incomplete.

Company, Contract, Contract

Updated: 23 March 2022; Ref: scu.214456

Boulting v Association of Cinematograph, Television and Allied Technicians: CA 1963

There must be a real conflict and not a theoretical conflict, before a solicitor can be restrained from acting in a matter against a former client. In order to give fully informed consent, the person entitled to the benefit of the rule must: ‘fully understand . . not only what he is doing but also what his legal rights are, and that he is in part surrendering them.’ As to company directors, a company is entitled ‘to the undivided loyalty of its directors.’ The principle recognises the primacy of the interests of the company which he is trusted not to betray.

Judges:

Upjohn LJ

Citations:

[1963] 2 QB 606

Jurisdiction:

England and Wales

Cited by:

Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Towers v Premier Waste Management Ltd CA 28-Jul-2011
The defendant appealed against a finding that as a director of the claimant company he had accepted personal benefits from a customer without disclosing this to the company.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 23 March 2022; Ref: scu.200432

Lagunas Nitrate Co v Lagunas Syndicate: CA 1899

The standard of behaviour expected of a company director was described: ‘As directors, I am not aware that there is any difference between their legal and their equitable duties. If directors act within their powers, if they act with such care as is reasonably to be expected from them, having regard to their knowledge and experience, and if they act honestly for the benefit of the company they represent, they discharge both their equitable as well as their legal duty to the company. In this case they clearly acted within their powers: they did nothing ultra vires: fraud is not imputed. The inquiry, therefore, is reduced to want of care and bona fides with a view to the interests of the nitrate company. The amount of care to be taken is difficult to define; but it is plain that directors are not liable for all the mistakes they may make, although if they had taken more care they might have avoided them: see Overend, Gurney and Co. v. Gibb. Their negligence must be not the omission to take all possible care; it must be much more blameable than that: it must be in a business sense culpable or gross.’

Judges:

Lindley MR

Citations:

[1899] 2 Ch 392

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

Company

Updated: 23 March 2022; Ref: scu.188612

Jones v Sherwood Computer Services Limited plc: CA 1992

A contract provided for the sale and purchase of shares. In the absence of agreement a third party firm of accountants would act as valuer as an expert, and his decision was to be final and binding on the parties. One party now appealed a decision not to strike out a claim which sought to go behind the valuation.
Held: The agreement was clear, and there was no evidence of bad faith on the part of the valuer, or that he had departed from his instructions. The parties had agreed to be bound by his decision whether given with or without reasons. His decision was binding. Appeal allowed.

Citations:

[1992] 1 WLR 277, [1992] 2 All ER 170

Jurisdiction:

England and Wales

Cited by:

Cited – Veba Oil Supply and Trading Gmbh v Petrotrade Inc CA 6-Dec-2001
A dispute between parties to a contract was to be determined by an independent expert. It was claimed that his report was not binding on the parties, since he had departed from his instructions in a material way. In this context, what constituted a . .
Cited – Morgan Sindall Plc v Sawston Farms (Cambs) Ltd CA 3-Dec-1998
An option had been given for the purchase of land. The claimant challenged the value assigned on exercising the option. The landowner subsequently disclosed a right of way over the land.
Held: An expert’s valuation cannot be challenged if it . .
Cited – AIC Ltd v ITS Testing Services (UK) Ltd (‘the Kriti Palm’) CA 28-Nov-2006
The defendant appealed a finding of deceit. Having issued its certificate as to the quality of a cargo of gasoline, it then failed to disclose to the party who had paid it to produce the certificate, information it had which cast doubt on the . .
Lists of cited by and citing cases may be incomplete.

Company, Arbitration

Updated: 23 March 2022; Ref: scu.182855

Balkanbank v Naser Taher and Others: QBD 13 Feb 1995

The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered as a result of the injunction. The Irish court had ordered an enquiry as to the damages. The counterclaim now additionally pleaded torts of malicious prosecution against the plaintiff. The defendant sought to add as defendants in the original claim (and claimants in the counterclaim) subsidiary companies which had also suffered as a result of the injunction.
Held: The English court had jurisdiction to entertain the counterclaim relating to an alleged breach of the joint venture agreement under which the original injunction had been granted. It was desirable that the additional defendants should be joined to avoid a multiplicity of proceedings, and the claims fell within RSC15.6 after it had been extended following Vendervell Trustees. The remedy under a counterclaim might also be available to the company’s subsidiaries. It was said that a claimant (the additional defendants here) could not pursue a claim of civil malicious prosecution where they were not parties to the original claim. It was arguable that a tort of malicious prosecution of a civil action could succeed and it should go ahead, with the defendants joined in as claimants under the counterclaim. The claim for abuse of process should also proceed to trial.

Judges:

Clarke J

Citations:

Times 14-Apr-1995, [1995] 1 WLR 1067

Citing:

Cited – Vendervell Trustees Ltd v White HL 1971
If the dispute could be adjudicated in the absence of a party and where no order was sought against that party, joinder was unnecessary and generally not allowed.
Order 15 Rule 13 requires that the presence of the party to be joined is . .
Cited – Tetra Molectric Limited v Japan Imports Limited CA 1976
The court had allowed another company to be added as respondent to an appeal by a plaintiff against the judge’s decision against a patent’s validity. ‘Sub-paragraph (ii) of paragraph (b) widens the discretion of the court to a great extent, for now . .
Cited – Montgomery v Foy, Morgan and Co 1895
The case of Norrois v Beazley was criticised as too narrow an interpretation of the rules. The court decsribed ‘one of the great objects of the Judicature Acts, namely that where there is one subject matter out of which several disputes arise, all . .
Cited – Norris v Beazley 1877
A person could not be added to a claim as defendant where the plaintiff has no claim against him and no wish to join him. . .
See also – Balkanbank v Taher and Others (No 2) CA 18-Nov-1994
The plaintiffs had sued in Ireland and obtained a Mareva injunction. That injunction was then first extended to a worldwide injunction, before being set aside. The court could itself to enquire as to damages without deciding whether to enforce the . .
Cited – Union Bank of the Middle East Ltd v Clapham CA 15-Jul-1981
The bank having sued the defendant under a guarantee, the defendant sought to join in the principal debtor company to pursue a counterclaim. The defendant appealed a refusal on the ground that the principal would not itself have been given leave to . .
Cited – Gurtner v Circuit CA 1968
The Court described the gap in provision for the recovery of damages for injury where the driver of a vehicle was uninsured: ‘if (a) the defendant was not insured at the time of the accident or (b) his policy of insurance was avoided in the . .
Cited – Amon v Raphael Tuck and Sons Ltd 1956
The court analysed the circumstances under which additional parties might be joined to an action by a defendant, applying a narrow interpretation. The court considered whether a defendant may be added against the parties’ wishes: ‘There are two . .
Cited – Atid Navigation Co Ltd v Towage and Shipping Co Ltd 1955
The judge refused to allow an additional party to be joined to an action to pursue a counterclaim. The issues between the present parties could ‘perfectly well be decided’ without the additional party. . .
Cited – Pender v Taddei CA 22-Apr-1898
At first instance the defendant had been refused permission to join in another party (Bellani) who was a joint contractor, as a defendant to the counterclaim.
Held: The appeal failed. . .
Cited – Metal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 27-Jan-1989
The claimants sued for negligent advice and secured judgment. The defendant company became insolvent, and so the plaintiff now sued the US parent company alleging conspiracy. The court considered a tort of malicious prosecution of a civil claim, . .
Cited – Speed Seal Ltd v Paddington CA 1985
The court was asked whether the defendant should be permitted to add to his pleadings a counterclaim asserting that the action was brought in bad faith for the ulterior motive of damaging the defendants’ business, and not for the protection of any . .
Cited – Goldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
See Also – Balkanbank v Taher and Others 19-Feb-1994
Disclosure of legal advice. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 23 March 2022; Ref: scu.78113

Re Southbourne Sheet Metal Co Ltd: CA 9 Sep 1992

The Secretary of State for Trade and Industry had sought orders of disqualification against the director and a co-director under the provisions of the Company Directors Disqualification Act 1986. The Secretary of State’s summons was supported by an affidavit from one of the receivers of the company.
Held: The director’s appeal succeeded. A discontinuance by the DTI led to a standard order for costs against the discontinuer.

Judges:

Nourse LJ

Citations:

Gazette 09-Sep-1992, [1993] 1 WLR 244, [1993] BCLC 135

Statutes:

Company Directors Disqualification Act 1986, Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 (SI 1987 No.2023) 2

Jurisdiction:

England and Wales

Citing:

Cited – Re Elgindata Ltd (2) CA 15-Jul-1992
A successful plaintiff who had not been shown to have behaved improperly or unreasonably was not to have his costs reduced or be ordered to pay any part of his opponents costs for having pursued some unsuccessful points.
Nourse LJ said that . .

Cited by:

Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Lists of cited by and citing cases may be incomplete.

Company, Costs

Updated: 23 March 2022; Ref: scu.85883

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 findings were not admissible as a whole. Prospective partners were under a duty to disclose matters within their knowledge of relevance to the proposed partnership. The issue of the need to disclose a past finding of dishonesty was inextricably tied to the past finding. ‘there can be no doubt that the principle of caveat emptor does not apply to the making of a partnership agreement, and that in negotiating such an agreement a party owes a duty to the other negotiating parties to disclose all material facts of which he has knowledge and of which the other negotiating parties may not be aware.’
However, absent fraud, breach of the duty of disclosure will, at least as a general rule, give rise merely to a right of rescission and not damages.
When considering an allegation of abuse of process, a court should be slower in preventing a party from continuing to deny serious charges of which another court has previously found him guilty than in preventing such a party from initiating proceedings for the purpose of relitigating the question whether he is guilty of those charges. If the claimants had wanted to rely on the earlier proceedings hey should have pleaded the particular parts upon which they wished to rely, rather than seeking to import the entire proceedings. The abuse of process allegation was not made out as against the defendant persisting in his denial of the findings.

Judges:

Lord Justice Ward, Lord Justice Jonathan Parker and Lord Justice More-Blick

Citations:

[2008] 1 WLR 484, [2006] EWCA Civ 1749, Times 17-Jan-2007, [2007] 3 All ER 802

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hollington v F Hewthorne and Co Limited CA 1943
The defendant had been involved in a road accident in which the plaintiff’s son had died, and had been convicted of careless driving. The plaintiff as the personal representative of his son sued for damages for negligence, seeking to rely on the . .
Appeal from – Conlon and Another v Simms ChD 9-Mar-2006
Partners in a solicitors practice fell out after one was struck off by the Law Society. The remaining partners claimed damages alleging that they had been drawn into the partnership after misrepresentations by the defendant about it, and sought to . .
Cited – Maddeford v Austwick 1826
When co-partners are negotiating between each other in relation to partnership assets, each partner must put the others in possession of all material facts with reference to the partnership assets, and not to conceal what he alone knows. . .
Cited – Bell v Lever Brothers Ltd HL 15-Dec-1931
Contract – Mutual Mistake Test
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have . .
Cited – 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 . .
Cited – Fawcett v Whitehouse 21-Dec-1829
The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant andpound;12,000 for persuading the partnership to accept the lease.
Cited – Andrewes v Garstin 1861
The plaintiff sued for breach of an agreement to enter into a partnership with the defendant, who pleaded that previously the plaintiff had carried on trade in partnership with another person, and that the defendant made the agreement on the faith . .
Cited – Law v Law 1905
A person with a right to rescind a contract may be held to have affirmed the contract even if there are some material facts which he did not know at the time of the affirmation. However: ‘ . . there is a duty resting upon the purchaser who knows, . .
Cited – The Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
Cited – Pan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994
The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
Held: ‘material circumstance’ which . .
Cited – Hill v Clifford CA 12-Jun-1907
(Majority) An earlier decision of the GMC striking the defendant off the register of dentists was prima facie evidence of the truth of the charges against him. . .
Cited – Trimble v Goldberg PC 1906
The parties entered into a partnership to acquire ‘stands of land’ for conversion into a township and subsequent re-sale. The land was acquired, along with shares in a company owning other stands in the same locality. One of the partners then bought . .
Cited – Phosphate Sewage Co Ltd v Molleson 1879
For an action making a collateral attack on a previous decision not to be an abuse of process the evidence had to be ‘fresh’ i.e. unavailable at the time of the first hearing, and the ‘new evidence must be such as entirely changes the aspect of the . .
Cited – Ashmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .

Cited by:

See Also – Simms v Conlon and Another ChD 31-Oct-2007
. .
Cited – OMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 23 March 2022; Ref: scu.247491

Re Bath Glass Ltd: CA 1988

A requirement that the court must have regard ‘in particular’ to the matters listed in a schedule means that the court is not confined to looking at those matters: ‘To reach a finding of unfitness the court must be satisfied that the director has been guilty of a serious failure or serious failures, whether deliberately or through incompetence, to perform those duties of directors which are attendant on the privilege of trading through companies with limited liability. Any misconduct of a director qua director may be relevant, even though it does not fall within a specific section of the Companies Act or the Insolvency Act.’

Judges:

Peter Gibson J

Citations:

[1988] BCLC 329

Statutes:

Company Director Disqualification Act 1985

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

Company

Updated: 23 March 2022; Ref: scu.188611

Association of Public Certified Accountants v Secretary of State for Trade and Industry: Chd 12 Jun 1997

A company can be ordered to change name only if the name is misleading and there is likely to be damage resulting from that confusion. The test is to be applied as at the date of the hearing.

Citations:

Gazette 17-Sep-1997, Times 12-Jun-1997

Statutes:

Companies Act 1985 32

Jurisdiction:

England and Wales

Company

Updated: 11 February 2022; Ref: scu.77928

Chalabi and Others v Jaffar and Another: ComC 11 Feb 2011

Judges:

Gloster J DBE

Citations:

[2011] EWHC 203 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal From – Chalabi and Others v Agha-Jaffar and Another CA 13-Dec-2011
The court was asked to construe contracts for the back to back sales of shares in a company. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 February 2022; Ref: scu.428679