Category: Company

Mckillen v Misland (Cyprus) Investments Ltd and Others: ChD 2 Feb 2012

Preliminary judgment as to interpretation of shareholder agreement
David Richards J
[2012] EWHC 129 (Ch)
Bailii
Companies Act 2006 994
England and Wales
Citing:
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 21-Dec-2011
‘prejudice need not be financial in character. A disregard of the rights of a member as such, without any financial consequences, may amount to prejudice falling within the section.’ . .

Cited by:
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Another CA 24-Feb-2012
Coroin Limited . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 28-Feb-2012
. .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 5-Mar-2012
Applications by the petitioner and claimant, Patrick McKillen, to make very extensive amendments to his Petition and Particulars of Claim in an associated Part 7 claim, and with an application by one of the respondents to the petition for further . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 26-Apr-2012
Application by the petitioner and claimant for the continuation during the trial of a confidentiality regime imposed for the purposes of pre-trial steps, particularly disclosure. . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 10-Aug-2012
Re Coroin
The parties battled for the control of major London hotels. The claimant alleged unfair dealings in attempts to secure that control.
Held: David Richards J said that prejudice: ‘will certainly encompass damage to the financial . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others CA 3-Jul-2013
. .
See Also – Misland (Cyprus) Investments Ltd and Another v Mckillen and Another ChD 25-Nov-2014
. .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.450565

Grace v Biagioli and others: CA 4 Nov 2005

The petitioner complained that he had first been removed as director, and that the remaining directors had misdescribed the company’s profits and paid those profits to themselves as management expenses and in breach of a resolution requiring an equal distribution. He appealed a finding that he had not been improperly removed as director, and as to the remedy awarded.
Held: The claimant’s behaviour in negotiating to set up a competing company was sufficient to justify his removal as a director. The judge having found the misapplication of profits in one year had closed his mind to later years and had declined to receive evidence on the point. He had not therefore been correct to conclude that the misappropriation would not be repeated. The judge should have ordered the defendants to buy out the claimant’s shares.
Patten J (at [61]) highlighted the following principles from the speech of Lord Hoffmann in the leading case of O’Neill v. Phillips: ‘(1) The concept of unfairness, although objective in its focus, is not to be considered in a vacuum. An assessment that conduct is unfair has to be made against the legal background of the corporate structure under consideration. This will usually take the form of the articles of association and any collateral agreements between shareholders which identify their rights and obligations as members of the company. Both are subject to established equitable principles which may moderate the exercise of strict legal rights when insistence on the enforcement of such rights would be unconscionable.
(2) It follows that it will not ordinarily be unfair for the affairs of a company to be conducted in accordance with the provisions of its articles or any other relevant and legally enforceable agreement, unless it would be inequitable for those agreements to be enforced in the particular circumstances under consideration. Unfairness may, to use Lord Hoffmann’s words, ‘consist in a breach of the rules or in using rules in a manner which equity would regard as contrary to good faith’ . . ; the conduct need not therefore be unlawful, but it must be inequitable.’
Mummery, Mance LJJ, Patten J
[2005] EWCA Civ 1222, [2006] 2 BCLC 70, [2006] BCC 85
Bailii
Companies Act 1985 459
England and Wales
Citing:
Cited – Re London School of Electronics 1986
The court considered its powers under the section: ‘The combined effect of sub-ss (1) and (3) is to empower the court to make such order as it thinks fit for giving relief, if it is first satisfied that the affairs of the company are being or have . .
Explained – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Cited – In re Bird Precision Bellows Ltd CA 1986
The company which was formed to combine one party’s expertise in the manufacturing of precision bellows with the general experience of two others in financial, commercial and industrial matters. For several years the company’s affairs had worked . .

Cited by:
Cited – Macom Gmbh v Bozeat and Others ChD 21-Jun-2021
Order regulating company’s affairs
COMPANY – Unfair prejudice – Petitioner 60% shareholder – Respondents 40% shareholders – Alleged breaches of director’s duties and failures to observe Shareholders’ Agreement – Undermining company’s corporate governance – Appropriate remedy – . .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.234453

Re National Car Parks Ltd: ChD 28 May 2021

Application by National Car Parks Limited for an order pursuant to section 901C of the Companies Act 2006, convening meetings of certain of its creditors for the purposes of considering and, if thought fit, approving a restructuring plan between the Company and its plan creditors.
Trower J
[2021] EWHC 1653 (Ch)
Bailii
England and Wales

Updated: 10 July 2021; Ref: scu.663829

McKillen v Misland (Cyprus) Investments Ltd and Others: CA 3 Jul 2013

[2013] EWCA Civ 781, [2013] 2 BCLC 583, [2014] BCC 14
Bailii
England and Wales
Citing:
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 2-Feb-2012
Preliminary judgment as to interpretation of shareholder agreement . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 21-Dec-2011
‘prejudice need not be financial in character. A disregard of the rights of a member as such, without any financial consequences, may amount to prejudice falling within the section.’ . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Another CA 24-Feb-2012
Coroin Limited . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 28-Feb-2012
. .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 5-Mar-2012
Applications by the petitioner and claimant, Patrick McKillen, to make very extensive amendments to his Petition and Particulars of Claim in an associated Part 7 claim, and with an application by one of the respondents to the petition for further . .
See Also – Mckillen v Misland (Cyprus) Investments Ltd and Others ChD 26-Apr-2012
Application by the petitioner and claimant for the continuation during the trial of a confidentiality regime imposed for the purposes of pre-trial steps, particularly disclosure. . .
See Also – McKillen v Misland (Cyprus) Investments Ltd and Others ChD 10-Aug-2012
Re Coroin
The parties battled for the control of major London hotels. The claimant alleged unfair dealings in attempts to secure that control.
Held: David Richards J said that prejudice: ‘will certainly encompass damage to the financial . .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.512124

Sikorkski v Sikorksi: ChD 2012

Briggs J recognised that the court has very wide powers under s. 996, and referred to the submission that it would be wrong in principle for the court to perpetuate a dysfunctional relationship between the parties into the indefinite future, and that, if minded to grant relief at all, the court should do so by ordering a purchase of the petitioner’s shares at a value calculated by reference to his dividend rights under the 1993 bargain, and on the assumption that the depletion in the shareholders’ funds was made good: ‘I recognise of course that an order for the purchase of an unfairly prejudiced shareholder’s shares, either by the other shareholders or by the company, has become almost the norm in cases where unfair prejudice is established in relation to the affairs of private companies. It is, nonetheless, not the relief sought by the petition, and the submission that (if otherwise minded to grant relief) I should do so by way of buy-out rather than, in effect, specific performance of the 1993 bargain plus compensation for breach, was made only in closing submissions. The result is that the potentially difficult and expensive process of valuing Joe’s shares on the appropriate assumptions has yet even to begin.
More generally I consider that the court should not close its mind to a bespoke solution to a particular form of unfair prejudice, other than by ordering a buy-out, at least in cases where a remedy that leaves the warring parties as shareholders in the same company does not of itself perpetuate an impossible relationship of joint management, or otherwise risk aggravating an existing dispute.’
Briggs J
[2012] EWHC 1613 (Ch)
Companies Act 2006 996
England and Wales
Cited by:
Cited – Macom Gmbh v Bozeat and Others ChD 21-Jun-2021
Order regulating company’s affairs
COMPANY – Unfair prejudice – Petitioner 60% shareholder – Respondents 40% shareholders – Alleged breaches of director’s duties and failures to observe Shareholders’ Agreement – Undermining company’s corporate governance – Appropriate remedy – . .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.663867

Brumder v Motornet Service and Repairs Ltd and Another: CA 14 Mar 2013

Whether a company director suffering injury at work could claim notwithstanding he had been the cause of the company’s default.
Held: ‘As a general rule the remedy for breach of a director’s duty of care is compensation for the harm caused to the company by the director’s negligence. That would have been the position in this case had the person injured been an employee or another person, for example a visitor who was assisting Mr Lewis. The harm to the company would in principle be the damages payable to the injured person and the company would in principle be able to recover that sum from the defaulting director. Here, the injured person was also the director. Although the company’s duty is absolute, whereas the director’s is to exercise reasonable care, skill and diligence, the damages payable by the director to the company will be the sum which the injured director/claimant would in principle be able to recover from the company.’
Ward, Longmore, Beatson LJJ
[2013] EWCA Civ 195, [2013] WLR(D) 102, [2013] PIQR P13, [2013] 2 BCLC 58, [2013] ICR 1069, [2013] 1 WLR 2783, [2013] BCC 381, [2013] 3 All ER 412,
Bailii, WLRD
Provision and Use of Work Equipment Regulations 1998 5(1)
England and Wales

Updated: 09 July 2021; Ref: scu.471732

Cadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another: ChD 23 May 2006

Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. The parties did not make accusations against each others of negligence.
Held: The stockbrokers had established an estoppel by the representation on the face of the certificate. The claims ended up ‘as if the Claimant companies had reinstated strangers, persons who had no right to be shareholders, a claim against which they received no Barclay implied indemnity from the Stockbrokers. The Companies have no right against the Stockbrokers other than by way of that indemnity and, that being denied them, their claims against the Stockbrokers thus fail.’
Lindsay J
[2006] EWHC 1184 (Ch)
Bailii
Companies Act 1985 352(1)
England and Wales
Citing:
Cited – Dugdale v Lovering 1875
The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .
Cited – Corporation of Sheffield v Barclay and Others HL 3-Jul-1905
Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, of . .
Cited – Royal Bank of Scotland Plc v Sandstone Properties Ltd and Others QBD 12-Mar-1998
A stock-broker who innocently requested the registration of a transfer supported by a duplicate share certificate was obliged to indemnify the company registrar for his loss even though the fraud had been made possible by duplicate share issue.
Cited – Stanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation PC 1980
The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee . .
Cited – Re The Bahia and San Francisco Railway Co Ltd v Trittin and others CA 1868
Miss Trittin left her share certificates with a broker. A forged transfer together with the certificates, was lodged with and with registered by the company. The new certificates certified that the named person as registered holder. He then sold . .
Cited – The Balkis Consolidated Co Ltd v Tomkinson and Others HL 1893
Tomkinson, a stockbroker, bought shares was registered by the company and received share certificates, and then sold them. The company found that the vendor to him had previously sold the shares to someone else who had been duly registered. The . .
Cited – Re The Bahia and San Francisco Railway Co Ltd v Trittin and others CA 1868
Miss Trittin left her share certificates with a broker. A forged transfer together with the certificates, was lodged with and with registered by the company. The new certificates certified that the named person as registered holder. He then sold . .
Mentioned – Alipour v Ary and Schweininger CA 17-Dec-1996
The petitioner appealed against rejection of his contributor’s winding up petition.
Held: The Companies court was the appropriate place to determine a dispute on winding up petition. A dispute on locus standi can be dealt with in the . .
Cited – Dixon v Kennaway and Co 1900
Farwell J said: ‘There is no doubt on the authorities that a certificate under the seal of the company estops the company from denying the title of a person who has accepted and acted on the certificate. In Knights -v- Wiffen [LR 5 QB 660 at 665] . .
Mentioned – In re Ottos Kopje Diamond Mines Ltd CA 1893
Bowen LJ: (referring to Bahia) ‘The way in which the Court made the company liable was this: they said that in as much as the certificate had been intended to be acted upon, it became a document the truth of which the company could not deny as . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Bloomenthal v Ford HL 1897
The appellant lent money to a limited company upon the terms that he should have as collateral security fully paid shares in the company and the company handed to the appellant certificates for 10000 shares of 1 pound each. The certificates stated . .
Cited – Simm and Others v Anglo-American Telegraph Co CA 1879
A firm which had acted through nominees sought to raise an estoppel as to its status on the company registers.
Held: The nominees acquired a ‘title by estoppel’ against the company following the issue by the company of a share certificate to . .
Cited – Baxendale v Bennett CA 1878
‘All estoppels are odious’ They should not be upheld unless they satisfy precisely the provisions of the law. . .
Cited – Longman v Bath Electric Tramways Ltd CA 1905
The reliance to be established by a person who seeks to raise an estoppel must be the proximate, direct or real loss (or detriment) which is asserted as part of the grounds for the estoppel. . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.242151

Stanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation: PC 1980

The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee thus came to be registered and he then sold the shares. The innocent shareholder asked for his name to be restored to the register and for related relief. The bank brought third party proceedings against the stockbrokers. The original shareholder succeeded against the bank. As between the bank and the stockbrokers, at first instance and in the Hong Kong Court of Appeal the Judges relied on the Barclay implied indemnity and found the stockbrokers liable to indemnify the bank. The stockbrokers appealed to the Privy Council.
Held: The decision in Barclay was upheld.
Lord Scarman dealt with an argument advanced by the stockbrokers that it was truly the transferee rather than the stockbrokers who had requested the bank to act upon the transfer deeds and to issue new certificates and hence, as it was sought to argue, that, rather than the stockbrokers, it was only the transferee who was responsible for indemnifying the bank. As to that argument he said: ‘It is not the case that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability. But, upon the view of the letters, which the Courts below accepted and this Board believes to be correct, the brokers cannot avoid personal responsibility for whatever consequences the law attaches to the making of the request and the bank’s compliance with it. It was their request – even though made on Mr Wong’s [the transferee’s] behalf.’
As to an indemnity, after quoting Dugdale v Lovering: ‘This ‘broad principle’, as Lord Davey called it, has been consistently followed, and Mr Leggatt for the brokers disclaimed any intention to invite their Lordships’ Board to review it. Their Lordships are satisfied that it is now firmly embedded in the law: see Bank of England -v- Cutler [1908] 2 KB 208; Secretary of State for India -v- Bank of India Ltd [1938] 65 Ind. App. 286 and Welch -v- Bank of England [1955] Ch 508 (per Harman J at pp. 548-549). ‘ and ‘For these reasons their Lordships find themselves in agreement with the Court of Appeal in holding that there was in the circumstances of this request a promise by the stockbroker to indemnify the bank if, by acting on the request, it caused actionable injury or damage to a third party. The promise was accepted by the bank acting on the request and became a contractual indemnity.’
Lord Scarman
[1981] AC 787, [1980] 2 All ER 599
England and Wales
Citing:
Adopted – Corporation of Sheffield v Barclay and Others HL 3-Jul-1905
Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, of . .
Cited – Dugdale v Lovering 1875
The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .

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

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.242170

Brickenden v London Loan and Savings Co: PC 10 May 1934

In order to establish breach of the fiduciary dealing rules, the company does not have to prove that it would not have entered into the transaction if there had been compliance by the director with the fiduciary-dealing rules and he had made disclosure of his interest in the transaction.
Lord Thankerton said: ‘When a party, holding a fiduciary relationship, commits a breach of his duty by non-disclosure of material facts, which his constituent is entitled to know in connection with the transaction, he cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction, because the constituent’s action would be solely determined by some other factor, such as the valuation by another party of the property proposed to be mortgaged. Once the Court has determined that the non-disclosed facts were material, speculation as to what course the constituent, on disclosure would have taken is not relevant.’
Lord Thankerton
(1934) 3 DLR 465, [1934] 2 WWR 545, [1934] UKPC 25
Bailii
Canada
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 . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.187435

Durham Tees Valley Airport Ltd v BMI Baby Ltd and Another: ChD 30 Apr 2009

Davis J
[2009] EWHC 852 (Ch), [2009] 2 Lloyds Rep 246, [2009] 2 All ER (Comm) 1083
Bailii
England and Wales
Cited by:
Appeal from – Durham Tees Valley Airport Ltd v BMIbaby Ltd and Another CA 5-May-2010
Whilst it is correct that damages for breach of contract are assessed on the basis that the party in breach would have performed the contract in the manner least onerous to it, the court will make its counterfactual assessment on the basis that the . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.341798

In re Blights Builders Ltd: ChD 2 Oct 2006

An out of court appointment of joint administrators of the company, a one-man building company, had been made by the principal shareholder’s executors at a time when, unknown to them, a creditor’s petition for the winding up of the company had already been presented. By paragraph 25 of Schedule B1, an administrator may not be appointed under paragraph 22 if a petition for the winding up of the company has been presented and not disposed of.
Held: The petition was ‘presented’ when it was delivered to the court, and not when it was later sealed and issued.
Nor could the position be regularised using rule 7.55: ‘ I do not consider that an appointment by the company or by the directors under paragraph 22 is an ‘insolvency proceeding’ for the purpose of the rule. As was pointed out by Sir Donald Nicholls V.-C. in Re A Debtor (No.88 of 1991), [1992] 4 All ER 301, [1993] Ch 286, a distinction has to be drawn between legal proceedings as such and the doing of acts which are part of the statutorily prescribed procedure for obtaining relief. An out-of-court appointment is part of the statutory procedure that is necessary to obtain the remedies and reliefs afforded by Schedule B1 but does not of itself initiate legal proceedings. Legal proceedings are initiated when the administrator makes an application under paragraph 63 of Schedule B1 or otherwise, but until then he is an officer of the court appointed out of court and subject to obligations to report to the court.
Secondly, I accept the submission that failure to satisfy the statutory criteria for the exercise of the power to appoint represents a fundamental flaw which cannot be remedied under a regularisation provision, a principle enunciated in Re Awan [2000] BPIR, 241.
Thirdly, I accept that it is difficult to see how an invalid appointment could occasion an ‘injustice’, and if that invalidating does occasion an injustice how that is ‘remedied’ by an order retrospectively validating the appointment.
So I do not consider that rule 7.55 provides an answer.’
Norris QC J
[2006] EWHC 3549 (Ch), [2008] 1 BCLC 245, [2007] BCC 712, [2007] 3 All ER 776, [2007] 3 All ER 776
Bailii
Insolvency Rules 1986 7.55
England and Wales
Cited by:
Cited – In re Frontsouth (Witham) Ltd and Another ChD 30-Jun-2011
The court was asked to make a retrospective appointment of a company administrator.
Held: Henderson J (in a reserved judgement) said that he shared Morgan J’s misgivings, but like him regarded the jurisdiction as a useful one and was prepared . .
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 . .

These lists may be incomplete.
Updated: 08 July 2021; Ref: scu.341776

Broadcasting Investment Group Ltd and Others v Smith and Another: CA 18 Jun 2021

Appeal and cross-appeal concerned with the scope and effect of the rule in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 (‘Prudential’) as explained by the Supreme Court in Sevilleja v Marex Financial Limited [2020] 3 WLR 255, and the effect of the rule in Prudential when taken together with the Contract (Rights of Third Parties) Act 1999, in respect of a contract that benefits a company, but to which the company is not a party.
Lady Justice Asplin
[2021] EWCA Civ 912, [2021] WLR(D) 349
Bailii, WLRD
England and Wales

Updated: 01 July 2021; Ref: scu.663398

In re Kingston Cotton Mill (No 2): ChD 1895

The power to order a director to repay a company’s funds lost as a result of ‘misfeasance’ does not apply to conduct engaged in honestly and reasonably.
Vaughan Williams J disused the general principle the directors will be liable to restore unlawful dividends that they have approved and said: ‘On the whole I have come to the conclusion that there is no such bulk of authority as binds me to hold that directors who pay away the funds of the company under an honest and reasonable belief in a state of affairs which would justify the payments made be held liable to replace the funds because it turns out on the true facts that the payments were ultra vires.’
Vaughan Williams J
[1896] 1 Ch 331
England and Wales
Cited by:
Cited – Holland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.467096

Re ITUA BBA International Ltd: ChD 28 Jun 2012

The court was asked as to the interpretation of the 2007 Regulations where the intended eventual company had been formed only for this purpose.
Held: The phrase existing transferee company’ in the regulation attempted no more than to exclude from the regulations a a transferee company which had been solely incorporaded to stand as a transeferee company,
Henderson J
[2012] EWHC 1783 (Ch), [2013] Bus LR 490, [2012] WLR(D) 187
Bailii, WLRD, WLRD
Companies (Cross-Border Mergers) Regulations 2007 3(1)
England and Wales

Updated: 24 June 2021; Ref: scu.461758

Re Loquitur Ltd: ChD 2003

Etherton J
[2003] 2 BCLC 442, [2003] EWHC 999 (Ch)
England and Wales
Cited by:
Cited – Holland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.467094

Re Verby Print For Advertising Ltd: ChD 1998

An application for disqualification orders was made on the basis of the directors’ failure to pay tax.
Held: Neuberger J said: ‘I would accept the grave nature of an allegation of unfitness under section 6(1)(b) of the 1986 Act must be borne in mind when considering whether that allegation is made out.’ The court also considered the burden of proof, and that a higher standard may be required for more serious allegations.
Neuberger J
[1998] BCC 652, [1998] 2 BCLC 23
Company Directors Disqualification Act 1986 6(1)(b)
England and Wales
Cited by:
Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012
cathie_ssbisCA2012
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. . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.465967

Selangor United Rubber Estates Ltd v Cradock (No 3): ChD 1968

The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to trustees of those assets.’
He continued: ‘It is essential at the outset to distinguish two very different kinds of so-called constructive trustees: (1) Those who, though not appointed trustees, take upon themselves to act as such and to possess and administer trust property for the beneficiaries, such as trustees de son tort. Distinguishing features for present purposes are (a) they do not claim to act in their own right but for the beneficiaries, and (b) their assumption to act is not of itself a ground of liability (save in the sense of course of liability to account and for any failure in the duty so assumed), and so their status as trustees precedes the occurrence which may be the subject of claim against them. (2) Those whom a court of equity will treat as trustees by reason of their action, of which complaint is made. Distinguishing features are (a) that such trustees claim to act in their own right and not for beneficiaries, and (b) no trusteeship arises before, but only by reason of, the action complained of.’
. . And ‘It seems to me imperative to grasp and keep constantly in mind that the second category of constructive trusteeship (which is the only category with which we are concerned) is nothing more than a formula for equitable relief. The court of equity says that the defendant shall be liable in equity, as though he were a trustee. He is made liable in equity as trustee by the imposition or construction of the court of equity. This is done because in accordance with equitable principles applied by the court of equity it is equitable that he should be held liable as though he were a trustee.’
Ungoed-Thomas J
[1968] 1 WLR 1555, [1968] 2 All ER 1073
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 . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Holland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .
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 . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193893

Fulham Football Club (1987) Ltd v Richards and Another: CA 21 Jul 2011

The club appealed from the stay on an unfair prejudice petition under section 994 of the 2006 Act against the Respondent League.
Rix, Longmore, Patten LJJ
[2011] EWCA Civ 855, [2012] 1 All ER (Comm) 1148, [2012] BCLC 335, [2012] 2 WLR 1008, [2012] 1 BCLC 335, [2012] 1 All ER 414, [2012] 1 CLC 850, [2011] ArbLR 22, [2012] Ch 333, [2011] BCC 910, [2012] Bus LR 606
Bailii
Companies Act 2006 994
England and Wales

Updated: 21 June 2021; Ref: scu.442017

Re Yagerphone Ltd: 1935

A sum recovered from a creditor who has been wrongly preferred enures for the benefit of the general body of creditors, not for the benefit of the company or the holder of the floating charge. It does not become part of the company’s assets but is received by the liquidator impressed with a trust in favour of those creditors amongst whom he has to distribute the assets of the company.
[1935] Ch 392
England and Wales

Updated: 21 June 2021; Ref: scu.196015

Re Hurricane Energy Plc: ChD 25 May 2021

Application by the Company to convene a meeting of creditors of the Company to consider a plan of reorganisation under Part 26A of the Companies Act 2006.
HHJ David Cooke
[2021] EWHC 1418 (Ch)
Bailii
England and Wales

Updated: 20 June 2021; Ref: scu.663061

Chalcot Training Ltd v Ralph and Another: CA 27 May 2021

‘whether arrangements made between a company and its two employed shareholder/directors with a view to avoiding tax amounted to the allotment of shares at a discount; contrary to section 580 of the Companies Act 2006. There is a subsidiary issue: namely, whether the arrangements involved the payment of the company’s shares or capital money in consideration of an agreement to subscribe for shares; contrary to section 552 of the Act.’
Lord Justice Lewison
[2021] EWCA Civ 795
Bailii
Companies Act 2006 580 552
England and Wales

Updated: 20 June 2021; Ref: scu.663186

Ruben v Great Fingall Consolidated: HL 1906

The company secretary, to pursue a fraudulent objective of his own, presented to innocent lenders a share certificate appearing to be that of the company and appearing to be signed by two directors as well as by the secretary. However, the seal had been affixed by the secretary fraudulently and the secretary had forged the two signatures of the directors.
Lord Loreburn said: ‘I cannot see upon what principle your Lordships can hold that the defendants are liable in this action. The forged certificate is a pure nullity. It is quite true that persons dealing with limited liability companies are not bound to inquire into their indoor management, and will not be affected by irregularities of which they had no notice, But this doctrine, which is well established, applies only to irregularities that otherwise might affect a genuine transaction. It cannot apply to a forgery.
Another ground was pressed upon us, namely, that this certificate was delivered by Rowe in the course of his employment, and that delivery imported a representation or warranty that the certificate was genuine. He had not, nor was held out as having, authority to make any such representation or to give any such warranty. And certainly no such authority arises from the simple fact that he held the office of secretary and was a proper person to deliver certificates. Nor am I able to see how the defendant company is estopped from disputing the genuineness of this certificate. That, indeed, is only another way of stating the same contention. From beginning to end the company itself and its officers, with the exception of the secretary, had nothing to do either with the preparation or issue of the document.
No precedent has been quoted in support of the plaintiffs’ contention except the case of Shaw v Port Philip Gold Mining Co(1). I agree with Stirling LJ in regarding that decision as one that may possibly be upheld upon the supposition that the secretary there was, in fact, held out as having authority to warrant the genuineness of a certificate. If that be not so, then in my opinion the decision cannot be sustained.’
Lord Macnaghten said: ‘The thing put forward as the foundation of their claim is a piece of paper which purports to be a certificate of shares in the company. This paper is false and fraudulent from beginning to end. The representation of the company’s seal which appears upon it, though made by the impression of the real seal of the company, is counterfeit, and no better than a forgery. The signatures of the two directors which purport to authenticate the sealing are forgeries pure and simple. Every statement in the document is a lie. The only thing real about it is the signature of the secretary of the company, who was the sole author and perpetrator of the fraud. No one would suggest that this fraudulent certificate could of itself give rise to any right or bind or affect the company in any way. It is not the company’s deed, and there is nothing to prevent the company from saying so.
Then how can the company be bound or affected by it? The directors have never said or done anything to represent or lead to the belief that this thing was the company’s deed. Without such a representation there can be no estoppel.
The fact that this fraudulent certificate was concocted in the company’s office and was uttered and sent forth by its author from the place of its origin cannot give it an efficacy which it does not intrinsically possess. The secretary of the company, who is a mere servant, may be the proper hand to deliver out certificates which the company issues in due course, but he can have no authority to guarantee the genuineness of validity of a document which is not the deed of the company.
I could have understood a claim on the part of the appellants if it were incumbent on the company to lock up their seal and guard it as a dangerous beast and if it were culpable carelessness on the part of the directors to commit the care of the seal to their secretary or any other official. That is a view which once commended itself to a jury, but it has been disposed of for good and all by the case of Bank of Ireland v Trustees of Evans’ Charities (1) in this House.
Of all the numerous cases that were cited in the opening none, I think, is to the point but Shaw v Port Philip Gold Mining Co.(1), and that, as it seems to me, cannot be supported unless a forced and unreasonable construction be placed on the admissions which were made by the parties in that action.’
Lord Davey said: ‘It is admitted that Rowe was the proper person to deliver certificates to those entitled to them. From this harmless proposition, the appellant slides into another and very different one, that it was the secretary’s duty to warrant on behalf of the company the genuineness of the documents he delivered. There is no evidence that any such duty or power was, in fact, entrusted to Rowe and it is too great a strain on my powers to ask me to imply it from the mere fact of his being the secretary or the proper person to deliver documents.’
Lord James, Lord Loreburn, Lord Macnaghten, Lord Davey
[1906] 1 AC 439
England and Wales
Citing:
Cited – Shaw v The Port Phillip and Colonial Gold Mining Company Ltd 1884
A company secretary was to procure execution of certificates of shares in accordance with prescribed formalities. A certificate was issued and presented by the secretary in favour of a purchaser in the usual form with signature of director and . .

Cited by:
Cited – Stuart Peters Limited v Bell EAT 22-Oct-2008
EAT UNFAIR DISMISSAL: Compensation/Mitigation of loss
The employee was unfairly constructively dismissed. She was entitled to a 6 month notice period that was not paid by the employees in that period, . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.374703

Greenhalgh v Alderne Cinemas Ltd: 1951

The issue was whether a special resolution has been passed bona fide for the benefit of the company.
Held: The phrase, ‘the company as a whole,’ does not (at any rate in such a case as the present) mean the company as a commercial entity as distinct from the corporators. It means the corporators as a general body. That is to say, you may take the case of an individual hypothetical member and ask whether what is proposed is, in the honest opinion of those who voted in its favour, for that person’s benefit.’
Sir Raymond Evershed MR
[1951] Ch 286
England and Wales
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 . .

These lists may be incomplete.
Updated: 16 June 2021; Ref: scu.181243

Standard Chartered Bank and Another v Registrar of Companies: ChD 1 Jun 2021

Application to appoint new liquidators
His Honour Judge Hodge QC Sitting as a Judge of the High Court
[2021] EWHC 1566 (Ch)
Bailii
Companies Act 2006 1029, Insolvency Act 1986 108, Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009, Limited Liability Partnership Regulations 2001
England and Wales

Updated: 16 June 2021; Ref: scu.663242

Cooper and Others v Fanmailuk.Com Ltd and Another: CA 17 Dec 2009

F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Held: The appeal was dismissed. The judge had given proper consideration to the evidence and his assessment was not perverse and should stand. There had been a common intention that the shares were to be held in trust for the respondent. The circumstances including the faking of documents by others supported the judges conclusion as to the reliability of the principle claimant.
Mummery LJ, Lloyd J, Aikens LJ
[2009] EWCA Civ 1368
Bailii
England and Wales
Citing:
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Eckersley v Binnie CA 1988
The court considered the duties of a judge considering conflicting expert evidence: ‘In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he . .
Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Fanmailuk.Com Ltd and Another v Cooper and others ChD 11-Jun-2008
Claim for a declaration that the entire share capital was held on trust for the claimant.
Held: Engelhart QC said: ‘on an application under section 261 it would be ‘quite wrong . . to embark on anything like a mini-trial of the action’ . .
Appeal from – Fanmailuk.Com Ltd and Another v Cooper and others ChD 17-Dec-2008
A declaration was sought as to the beneficial ownership of some shares. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.384329

Schmaltz v Avery: 1851

An agent who signed a charterparty containing a cesser clause purportedly as agent for an unidentified principal could show that he was himself the principal and could sue on the contract, on the grounds that it was irrelevant to the third party who contracted on such terms to whom he was liable, and that the agent could say that he was his own principal.
[1851] EngR 68, (1851) 16 QB 655, (1851) 117 ER 1031
Commonlii
England and Wales
Cited by:
Well established – Newborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.296384

In re David Lloyd and Co: 1877

The secured claims of debenture holders are pursued, not in the winding up, but by enforcement of the debenture holders’ proprietary rights as chargees of the assets in question. A creditor is a person who ‘is to be considered as entirely outside the company, who is merely seeking to enforce a claim, not against the company, but to his own property’
References: (1877) 6 Ch D 339
Judges: James LJ
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194245

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 subject to the later floating charge. On crystallisation, the later charge took priority. Under the section, the preferential creditors had overall priority. The assets available to pay the liquidation expenses included the assets subject to the floating charge even though that had crystallised before they were incurred: ‘a holder of a subsequent fixed charge which has been made subject to a prior floating charge – either by express provisions in the fixed charge itself or by a restriction in the floating charge of which the holder of the fixed charge had notice – takes his security upon terms that, if before the charged property has been realised under that fixed charge events occur which cause the floating charge to crystallise, then the proceeds of realisation must be paid to the holder of the floating charge; the holder of the fixed charge can have no claim upon those proceeds until the claims under the floating charge have been paid out.’
References: [1993] Ch 388
Judges: Chadwick J
Statutes: Insolvency Act 1984 175(2)
Jurisdiction: England and Wales
This case cites:

  • Applied – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
    It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
    ([1979] 2 LL Rep 142)
  • Applied – In re Camden Brewery 1911
    . .
    ([1911] 106 LT 598)
  • Distinguished – In re Woodroffes (Musical Instruments) 1985
    . .
    ([1985] 2 All ER 908)
  • Followed – Waters v Widdows 1984
    . .
    ([1984] VR 503)
  • Not followed – In re Christonette International Ltd 1982
    In the case of a compulsory liquidation the date on which a floating charge is crystallised was the date on which the winding up order was made and not the date on which the winding up petition was presented. . .
    ([1982] 1 WLR 1245)
  • Applied – In re Barleycorn Enterprises Ltd; Mathias and Davies (a Firm) v Down CA 1970
    The property comprised in a floating charge forms part of the assets of a company for the purposes of paying (1) costs and expenses of winding up as well as (2) preferential debts.
    Phillimore LJ said: ‘Mr Wooton’s submission [for the . .
    ([1970] Ch 465)

This case is cited by:

  • Doubted – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
    The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
    Held: Siebe was wrongly decided. The charge was ineffective over the book . .
    ([2004] 2 WLR 783, [2004] 1 All ER 981, [2004] BCC 51, [2004] 1 BCLC 335, , [2004] EWHC 9 (Ch))
  • Distinguished – 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. . .
    (Gazette 07-Oct-94, [1994] 1 WLR 1427)
  • 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 . .
    ([2005] 2 All ER 1000, [2004] All ER (D) 390, Times 04-Jun-04, , Gazette 10-Jun-04, [2004] EWCA Civ 670)
  • Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
    Former HL decision in Siebe Gorman overruled
    The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
    Held: The . .
    ([2005] 3 WLR 58, [2005] 2 AC 680, [2005] 4 All ER 209, [2005] All ER (D) 368, [2005] 2 Lloyds Rep 275, [2005] 2 BCLC 269, [2005] BCC 694, , [2005] UKHL 41, , Times 31-Jul-05)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.191962

Smith v Croft (No 2): 1988

References: [1988] Ch 114
This case cites:

  • See Also – Smith v Croft ChD 1986
    Walton J was concerned with two appeals from the Master. The first appeal was from an order made ex parte ordering the company to indemnify the claimant against costs. The appeal against that order was allowed, and Walton J decided that there was so . .
    ([1986] 1 WLR 580, [1986] 2 All ER 551, [1986] BCLC 207)

This case is cited by:

  • Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
    The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
    ([2003] 4 All ER 1, [2003] All ER (D) 539, [2004] PNLR 5, , [2003] UKHL 41, , Gazette 02-Oct-03, [2003] 1 WLR 1937, [2003] BPIR 1357)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.185416

In re Christonette International Ltd: 1982

In the case of a compulsory liquidation the date on which a floating charge is crystallised was the date on which the winding up order was made and not the date on which the winding up petition was presented.
References: [1982] 1 WLR 1245
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194252

Industrial Development Consultants Ltd v Cooley: 1972

Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the Gas Board were not prepared to let the contracts to the company. The Gas Board subsequently approached Mr Cooley in his private capacity; and indicated that they would be prepared to contract with him personally. In the course of the meeting, Mr Cooley acquired knowledge that the company did not have; and would have wanted to have. Mr Cooley therefore resigned his office (on the basis of a false excuse) and entered into the contracts with the Gas Board.
Held: He was accountable for the profit. Where a fiduciary obtains a benefit in breach of his fiduciary duty, he is liable to account even if the beneficiary could not itself have obtained that benefit or opportunity. A company director owes a fiduciary duty to report relevant information of concern to the company: ‘Information which came to [the director] while he was managing director and which was of concern to [the company] and was relevant for [the company] to know, was information which it was his duty to pass on to [the company] because between himself and [the company] a fiduciary relationship existed . . ‘ and ‘Therefore, I feel impelled to the conclusion that when the defendant embarked on this course of conduct of getting information . . using that information and preparing those documents . . and sending them off . . , he was guilty of putting himself into the position in which his duty to his employers, the plaintiffs, and his own private interests conflicted and conflicted grievously. There being the fiduciary relationship I have described, it seems to me plain that it was his duty once he got this information to pass it to his employers and not to guard it for his own personal purposes and profit. He put himself into the position when his duty and his interests conflicted.’
References: [1972] 1 WLR 443
Judges: Roskill J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
    There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
    (Times 05-Feb-04, [2004] EWHC 52 (Ch), , [2004] 1 BCLC 468)
  • Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
    The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
    Held: A company . .
    ([2004] EWCA Civ 1244, Times 21-Oct-04, , [2004] BCC 994, [2007] Lloyd’s Rep PN 17, [2005] ICR 450, [2005] 2 BCLC 91, [2004] IRLR 928)
  • 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 . .
    (, [2005] EWHC 1638 (Ch))
  • Cited – O’Donnell v Shanahan and Another CA 22-Jul-2009
    The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
    (, [2009] EWCA Civ 751, Times 21-Aug-09)
  • Cited – Helmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
    Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
    (, [2006] EWCA Civ 1735, [2007] FSR 16, [2007] IRLR 126)
  • Cited – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
    The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
    (, [2011] EWHC 1441 (Comm), [2011] ArbLR 55)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.192208

Hickman v Kent or Romney Marsh Sheep Breeders ‘ Association: 1915

The court was asked whether the articles of association created rights between the shareholders and the company, or simply between the shareholders inter se in respect of their rights as shareholders. The statutory provision was seen as creating the latter, but not necessarily the former.
Held: It is the constitution of a company which confers rights on members including the right to exercise votes attached to shares. Articles regulating the rights and obligations of the members generally do create rights and obligations between them and the company respectively. A company cannot unilaterally vary its contracts by altering its articles unless that is the basis upon which the contract was made. A provision of a statutory contract cannot be enforced unless it affects the member in his or her capacity as a member
References: [1915] 1 Ch 881, [1914-15] All ER 900
Judges: Astbury J
Jurisdiction: England and Wales

Last Update: 23 September 2020; Ref: scu.556806

In re Grayan Building Services Ltd: CA 1995

The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law offers great privileges and great opportunities for those who wish to trade under that regime. But the corporate environment carries with it the discipline that those who avail themselves of those privileges must accept the standards laid down and abide by the regulatory rules and disciplines in place to protect creditors and shareholders. And, while some significant corporate failures will occur despite the directors exercising best managerial practice, in many, too many, cases there have been serious breaches of those rules and disciplines, in situations where the observance of them would or at least might have prevented or reduced the scale of the failure and consequent loss to creditors and investors.’
Hoffmann LJ said: ‘The court is concerned solely with the conduct specified by the Secretary of State . . under rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987. It must decide whether that conduct, viewed cumulatively and taking into account any extenuating circumstances, has fallen below the standards of probity and competence appropriate for persons fit to be directors of companies.’ and ‘Some of the examples given by the judge are of extenuating circumstances which accompanied the conduct in question. These are matters which it seems to me would always be proper for the court to take into account. On the other hand, if the judge meant that the court was concerned with anything other than whether the conduct, taken in its setting, fell below the appropriate standard, I would respectfully disagree.’
References: [1995] Ch 241, [1995] 3 WLR 1
Judges: Henry LJ, Hoffmann LJ, Neill LJ
Statutes: Company Directors Disqualification Act 1986 6, Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002 (, Times 29-Nov-02, Gazette 23-Jan-03, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140)
    The appellant asked the Court to reverse a decision on the facts reached in the lower court.
    Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
  • Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003 ([2003] 4 All ER 162, (2003) 73 BMLR 201, , [2003] UKHL 44, , Times 11-Aug-03, [2003] 1 WLR 1929)
    The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
    Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
  • Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003 ([2003] EWHC 2843 (Ch), , Times 02-Dec-03)
    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 – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005 (, [2005] EWHC 888 (Ch), Times 26-May-05)
    The director sought to appeal an order disqualifying him form acting as a company director.
    Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
  • Cited – Agulian and Another v Cyganik CA 24-Feb-2006 (, [2006] EWCA Civ 129)
    The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
    Held: He had retained his domicile of birth: . .
  • Cited – Brooker and Another v Fisher CA 4-Apr-2008 (, [2008] EWCA Civ 287, [2008] Bus LR 1123, [2008] FSR 26, [2008] EMLR 13)
    The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
  • Cited – Bracknell Forest Borough Council v Green and Another CA 20-Mar-2009 (, [2009] EWCA Civ 238, [2009] CP Rep 31, [2009] PTSR CS49, [2009] NPC 45, [2009] HLR 38)
    The council sought possession of the property saying that the three bedroomed property was underused by the tenant and his sister. The respondents said that it was not too extensive, and that no satisfactory alternative accommodation had been . .
  • Cited – Secretary of State for Business Innovation and Skills v Aaron and Others ChD 10-Dec-2009 (, [2009] EWHC 3263 (Ch))
    The claimant sought a disqualification after the defendants had been directors of a company mis-selling Structured Capital at Risk products. The FSA had reported that they had been negligent.
    Held: ‘I do not have to decide whether or not the . .
  • Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012 (, [2012] EWCA Civ 739, [2012] WLR(D) 168)
    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. . .
  • Cited – Jones v First Tier Tribunal and Another SC 17-Apr-2013 (UKSC 2011/0123, , [2013] UKSC 19, [2013] 2 WLR 1012, [2013] 2 All ER 625, [2013] WLR(D) 142, , , , , [2013] 2 AC 48)
    The claimant had been injured when a lorry driver swerved to avoid hitting a man who stood in his path. He said that the deceased’s act of suicide amounted to an offence of violence under the 1861 Act so as to bring his own claim within the 2001 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.182943

Hall v Hall: 7 Dec 1850

References: [1850] EngR 943, (1850) 3 Mac and G 79, (1850) 42 ER 191
Links: Commonlii
Jurisdiction: England and Wales
This case cites:

  • See Also – Hall v Hall 26-Jan-1850 ([1850] EngR 203, , (1850) 12 Beav 414, (1850) 50 ER 1119)
    Partnership dissolution . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.298290

Dawkins v Antrobus: CA 1881

Sir George Jessel MR said: ‘I think it is my duty to construe the rules fairly and in the same way as I should any other contract and I have no right to give the words other than their ordinary meaning, or to construe the rules otherwise than in their ordinary sense.’
References: (1881) 17 Ch D 615
Judges: Sir George Jessel MR
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Speechley and Others v Allott and Others CA (Bailii, [2014] EWCA Civ 230)
    The parties disputed the management of a social club. The club owned a bowling green, and bowling members sought to restrain its closure. The appellants now said that the court should not have found at first instance that a meeting had validly . .

(This list may be incomplete)

Last Update: 03 August 2020; Ref: scu.551299

Thorby v Goldberg: 1964

References: (1964) 112 CLR 597
Ratio: (High Court of Australia) If, when a contract is negotiated on behalf of a company, the directors bona fide think it in the interests of the company as a whole that the transaction should be entered into and carried into effect they may bind themselves by the contract to do whatever is necessary to effectuate it.
Jurisdiction: Australia
This case is cited by:

  • Cited – Fulham Football Club Ltd v Cabra Estates plc CA ([1994] 1 BCLC 363)
    Fulham, as lessees of Craven Cottage, agreed with CABRA, a developer, who had applied for planning permission to redevelop the ground, shortly before a public inquiry which had been set up to consider the planning application; and also a proposal by . .

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 241637

Charterbridge Corporation Ltd v Lloyds Bank: 1970

References: [1970] 1 Ch 62
Ratio: Special considerations arise as to his duties if a director acts in the interests not of the company of which he is a director but of the group of companies of which that company forms part.
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Official Receiver v Stern and Another CA ([2004] BCC 581, [2002] 1 BCLC 119, [2000] 1 WLR 2230, [2001] EWCA Civ 1787, Bailii)
    The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .

(This list may be incomplete)

Last Update: 14 March 2019
Ref: 181878

Teck Corporation Limited v Millar: 1972

References: (1972) 33 DLR 288
Coram: Berger J
Ratio: (Australia) The court discussed the use by a board of their powers in order to defeat a take over of the company: ‘So how wide a latitude ought the directors to have? If a group is seeking to obtain control, must the directors ignore them? Or are they entitled to consider the consequences of such a group taking over? ‘
This case cites:

  • Applied – Savoy Corp Ltd v Development Underwriting Ltd ((1963) NSWR 138)
    (Australia) The court discussed the extent of the director’s powers to arrange the company to prevent a take over: ‘It would seem to me to be unreal in the light of the structure of modern companies and of modern business life to take the view that . .

(This list may be incomplete)
This case is cited by:

  • Approved – Howard Smith Limited v Ampol Petroleum Limited PC ([1974] AC 821, Bailii, [1974] UKPC 3)
    (New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued . .
  • Cited – Cayne and Another v Global Natural Resources Plc ChD (Unreported, 12 August 1982, [1984] 1 All ER 225)
    The court gave this example of the legitimate use of the directors’ powers to defeat a take-over: ‘If Company A and Company B are in business competition, and Company A acquires a large holding of shares in Company B with the object of running . .
  • Cited – Criterion Properties Plc v Stratford UK Properties Llc and others ChD (Bailii, [2002] EWHC 496 (Ch))
    Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .

(This list may be incomplete)

Last Update: 22 March 2017
Ref: 196954

Eagleton v The East India Company; 10 Feb 1802

References: [1802] EngR 96, (1802) 3 Bos & Pul 55, (1802) 127 ER 32
Links: Commonlii
Ratio: 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 & 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
Jurisdiction: England and Wales

Last Update: 19-Nov-16
Ref: 344913

Drew v Drew; 30 Jul 1813

References: [1813] EngR 532, (1813) 2 Ves & Bea 159, (1813) 35 ER 279
Links: Commonlii
Ratio: 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,

Last Update: 06-Sep-16
Ref: 338297

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

References: Times 01-May-1992, Gazette 01-Jul-1992
Ratio: 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.
Statutes: Insolvency Act 1986 236(2)
This case is cited by:

  • Appeal from – Re Arrows Ltd (No 4) CA (Independent 08-Apr-93, Gazette 09-Jun-93)
    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. . .

(This list may be incomplete)

Last Update: 03-Sep-16
Ref: 85714

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

References: Gazette 23-Mar-1994, Times 19-Oct-1993, Ind Summary 11-Oct-1993
Ratio: 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.
Statutes: Companies Act 1985 151

Last Update: 22-Aug-16
Ref: 77845

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

References: Gazette 17-Sep-1997, Times 12-Jun-1997
Ratio: 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.
Statutes: Companies Act 1985 32

Last Update: 22-Aug-16
Ref: 77928

Lee v Showmen’s Guild of Great Britain: CA 1952

References: [1952] 2 QB 329, [1952] 1 All ER 1175
Coram: Denning LJ, Somervell LJ, Romer LJ
Ratio: Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
Denning LJ said: ‘The jurisdiction of a domestic tribunal, such as the committee of the Showmen’s Guild, must be founded on a contract, express or implied. Outside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it.’ and
‘I see no reason why the powers of the court to intervene should be any less in the case of domestic tribunals. In each case it is a question of interpretation. In one of a statute, in the other of the rules, to see whether the Tribunal has observed the law. In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not lie to a domestic tribunal but the remedy by declaration and injunction does lie; and it can be as effective as, if not more effective than certiorari. It is, indeed, more effective, because it is not subject to the limitation that the error must appear on the face of the record.’ and
‘The committee cannot extend their jurisdiction by giving a wrong construction to the contract . . no matter how honest they may be. They have only such jurisdiction as the contract on its true interpretation confers on them, not what they think it confers. The scope of their jurisdiction is a matter of the courts.’ and
People have a right, unless expressly or impliedly debarred, to insist for free access to the courts of general jurisdiction of the state: ‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’
Romer LJ said: ‘The proper tribunals for the determination of legal disputes in this country are the courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task’
This case is cited by:

  • Approved – Faramus v Film Artistes’ Association HL ([1964] AC 925, [1964] 1 All ER 25)
    Parties to a contract may be bound to act in it according to the rules of natural justice. . .
  • Cited – Koeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA (Bailii, [2005] EWCA Civ 856, [2005] BCLC 379)
    The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
  • Cited – Regina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA (Times 15-May-93, Independent 13-Sep-93, Bailii, [1993] EWCA Civ 36)
    The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
    Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .
  • Cited – Foster v McNicol and Another QBD (Bailii, [2016] EWHC 1966 (QB))
    The claimant challenged a decision of the National executice Committee of the Labour Party to allow its present Leader to stand in the election challenging his position without the need for him to submit first the otherwise standard nominations from . .

(This list may be incomplete)

Last Update: 30-Jul-16
Ref: 228474

Simpson v Eggington; 9 Feb 1855

References: (1855) 10 Exch 845, [1855] EngR 220, (1855) 10 Exch 845, (1855) 156 ER 683
Links: Commonlii
Coram: Parke B
Ratio:It is a good answer to a plea of set-off, that the amount has heen paid by a person professing to act as agent for and on account of the plaintiff, though without his authority, and that the latter ratified the act at the time of the trial. The treasurer of a corporation paid their clerk (the defendant) the amount of his year’s salary, both parties believing at the time that the treasurer had the authority of the corporation to make such payment, but the treasurer had no such authority, and the corporation afterwards repudiated the payment and dismissed the defendant from their service. In an action against the deferidatit for the recovery of certain monies paid to him on account of the corporation — Held, that the corporation was entitled, at the trial, to ratify the act of their treasurer, and, consequently, that the defendant could not set off the amount of his salary as due to him from the corporation.
The court found no evidence that as between himself and the landlord, or between himself and the plaintiff, the defendant had acted or purported to act or regarded himself as acting as agent for the plaintiff when making payments of what the tenant claimed had been his rent.
Held: Parke B said: ‘The general rule as to payment or satisfaction by a third person, not himself liable as a co-contractor . . appears to be, that it is not sufficient to discharge a debtor unless it is made by the third person, as agent, for and on account of the debtor and with his prior authority or subsequent ratification.’
This case is cited by:

  • Applied – Smith v Cox ([1942] 2 KB 558)
    The tenant, Mr Smith, refused to pay rent to the elderly landlady, Ms Rolf, because she had not repaired the property. The defendant agent paid the rent from his own pocket, expecting to recover it when the rent was eventually paid. When he failed . .
  • Cited – Treasure & Son Ltd v Dawes TCC (Bailii, [2008] EWHC 2181 (TCC))
    The defendant had been ordered to pay substantial fees to the claimant by the adjudicator. The defendant claimed that payment had been made on his behalf. . .
  • Cited – Park v Cho and Others ChD (Bailii, [2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27, WLRD)
    The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

(This list may be incomplete)

Last Update: 21-Jul-16
Ref: 276500

Nelson v Nelson; 9 Nov 1995

References: (1995) 184 CLR 538, [1995] HCA 25, (1995) 132 ALR 133, (1995) 70 ALJR 47, [1996] ANZ Conv R 280, (1995) 19 Leg Rep 14
Links: Austlii
Coram: Deane, Dawson, Toohey, McHugh, Gummoww JJ
Ratio:High Court of Australia McHugh J spoke of the so called ‘reliance rule’: ‘The [reliance] rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the relevant legislation or the question whether the sanctions imposed by the legislation sufficiently protect the purpose of the legislation. Regard is had only to the procedural issue; and it is that issue and not the policy of the legislation or the merits of the parties which determines the outcome. Basing the grant of legal remedies on an essentially procedural criterion which has nothing to do with the equitable positions of the parties or the policy of the legislation is unsatisfactory, particularly when implementing a doctrine which is founded on public policy.’

Last Update: 26-Jun-16
Ref: 566001

JC Houghton and Co v Northard, Lowe and Wills: HL 1928

References: [1928] AC 1
Ratio:the court was asked whether the knowledge of the directors of the latter company should be attributed to it, with the effect that the latter company could and should be treated as estopped from denying that it had consented to a particular arrangement with a third party company. However, the arrangement was one that was against the company’s interests and for the benefit of the third party company which the directors also controlled and which was in financial difficulties.
Held: The law does not make the unreal assumption that agents will reveal to their principals the fraud which they are comitting on them.
This case is cited by:

  • Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd -v- Item Software (UK) Ltd CA ([2004] EWCA Civ 1244, Times 21-Oct-04, Bailii, [2004] BCC 994, [2007] Lloyd’s Rep PN 17, [2005] ICR 450, [2005] 2 BCLC 91, [2004] IRLR 928)
    The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
    Held: A company . .
  • Cited – Jetivia Sa and Another -v- Bilta (UK) Ltd and Others SC (Bailii, [2015] UKSC 23, [2015] WLR(D) 182, Bailii Summary, WLRD, UKSC 2013/0206, SC Summary, SC, [2015] 2 Lloyd’s Rep 61, [2015] 1 BCLC 443, [2015] 2 All ER (Comm) 281, [2015] BVC 20, [2015] 2 WLR 1168, [2015] BCC 343, [2015] 2 All ER 1083)
    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 . .

(This list may be incomplete)

Last Update: 25-Jun-16
Ref: 215866

The Attorney-General, At The Relation Of Freer, Thompson, Flower, Lucy, Ford, Greaves, and The Mayor, Aldermen, And Burgesses of The Borough of Stratford-Upon-Avon County of Warwick,; 17 Jul 1851

References: [1851] EngR 722, (1851) 3 Mac & G 453, (1851) 42 ER 335
Links: Commonlii
Ratio A railway company was constituted in 1846 for the purpose of making a railway from A. to B., with a diverging line to C. In June 1851 the line of railway from A. to B. was nearly completed, but no steps had been taken to construct the diverging line, An information was then filed by the Attorney-General, at the relation of certain parties claiming to be interested in the diverging line, to restrain the company from opening the line from A. to B, except with the intention of oompleting also the diverging line. Held, upon demurrer, that the neglect by the company to complete the whole line could not be regarded in the light of a public injury so as to warrant the interference of the Attorney General.

Last Update: 01-Jun-16
Ref: 297038

Denkavit Internationaal and others v Bundesamt fur Finanzen: ECJ 17 Oct 1996

References: [1996] ECR I -5063, C-283/94, [1996] EUECJ C-283/94
Links: Bailii
LMA Ratio The case concerned an incorrect implementation by Germany of a Directive on the taxation of parent companies and subsidiaries in different States, which allegedly caused loss to the plaintiff’s company.
Held: (does decision turn on discretion on implementation) Germany’s breach did not amount to a sufficiently serious breach. Almost all of the other MS had adopted the same interpretation.

Last Update: 10-May-16
Ref: 161447

Re The Mexican And South American Company In Re Aston; 12 May 1859

References: [1859] EngR 608, (1859) 27 Beav 474, (1859) 54 ER 188
Links: Commonlii
Where a witness objects to answer, on the ground that he may subject himself to penalties, he must, in many instances, be the only one to determine on his liability; but when the facts disclosed raise a point of law as to his liability, the Court must decide it.
A joint stock company whose shares are represented to be transferable by delivery, is not necessarily illegal at common law.
A joint stock company established without Act or charter in 1835, and prior to the Joint Stock Companies Registration Act (7 & 8 Vict. c. 110), does not, upon an alteration in the shareholders subsequent to that Act, require registration.
The case of Blundell v. Winsor (8 Sim. 60), commented on.
A stockbroker held bound to discover the names of the persons for whom he had purchased shares in a joint stock company which had neither been incorporated, chartered or registered, and which was regulated by no deed of settlement, and whose shares passed by delivery.
Last Update: 26-Oct-15 Ref: 287960

In The Matter Of The Mexican And South American Company Grisewood And Smith’s Case De Pass’s Case; 15 Jul 1859

References: [1859] EngR 854, (1859) 4 De G & J 544, (1859) 45 ER 211
Links: Commonlii
A trading company was established in 1838, upon the terms contained in the prospectus, which placed its affairs under the management of individual directors, but contained no provision as to the transfers of shares. The certificates of shares purported to, give the holder a title to the shares, which accordingly were treated transferable by delivery was not such an assumption of a corporate character as to make the company illegal.
A person who buys shares in a trading company is to be taken to have bought them subject to their existing liabilities, and, on the winding up of the company, is liable to contribute, as well towards debts incurred before as those incurred after the purchase.
This case is cited by:

(This list may be incomplete)
Last Update: 25-Oct-15 Ref: 288206

Regina v Tidd Pratt; 5 Jun 1865

References: [1865] EngR 543, (1865) 6 B & S 672, (1865) 122 ER 1343
Links: Commonlii
Coram: Cockburn CJ
The court was asked as to the purported alteration of the rules of a friendly society which the registrar had refused to register. The two alleged defects were: i) The meeting of the society was held in Manchester (where the majority of members lived), rather than in Liverpool as the rules required; ii) The meeting was held at 2 pm although the rules contemplated night meetings. There were also objections to the new rules themselves, but those objections did not relate to the conduct of the meeting.
Held: Cockburn CJ said in argument that those objections were small and could be cured. However, the meeting was nevertheless invalid. Although the society itself could change the place of meeting, the officers could not, and in consequence: ‘The meeting was at a place where it could not legally be held, which renders the rules agreed to at it altogether null and void . . ‘
This case is cited by:

  • Cited – Speechley and Others -v- Allott and Others CA (Bailii, [2014] EWCA Civ 230)
    The parties disputed the management of a social club. The club owned a bowling green, and bowling members sought to restrain its closure. The appellants now said that the court should not have found at first instance that a meeting had validly . .

Smith v Mules; 17 Feb 1852

References: [1852] EngR 271, (1851-1852) 9 Hare 556, (1852) 68 ER 633
Links: Commonlii
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them might be employed or concerned; that B should use his best endeavours to obtain the appointment of the partnership firm to three offices or clerkships, which were then held by B, and such offices should be partnership appointments; that all other compatible offices should be obtained, if possible, in the name of the firm, and the emoluments treated as part of the profits of the partnership; that, if B or his son should retire, or A or B or his son should die, the share of the deceased partner should accrue to the surviving partners : that if B or his son retired they were to use their best endeavours to secure the practice to the continuing partners, and such retiring partner shouId not practise within 30 miles ; that, if either partner should not diligently and faithfully employ himself in carrying on the said partnership practice, and should, on receiving monies, bills, notes, &c., knowingly or wilfully omit immediately to make entries thereof, or if A. or the son of B should absent himself more than two months in one year, the others or other of the partners, if they or he should think fit, should be at liberty to dissolve the partnership, by giving to the offending partner a notice to that effect, and the partnership should from that time, or the time specified in the notice, be dissolved in the same manner and with the same consequences as if it had determined by the voluntary retirement of the offending partner. B. and his son subsequently prooured their own appointment, or the appointment of one of them, to the offices or clerkships, and did not endeavour to procure the appointment of A. It was afterwards discovered that B. was greatly involved in debt, and he absconded in January 1849, and did not return to the business, In May 1849 A, served a notice, in the manner pointed out by the articles, on B. and his son to dissolve the partnership from that date ; and he then filed his bill against B. and his son to have the dissolution declared by the Court, an injunction to restrain them from practising within 30 miles, and a decree that they should resign the several offices or clerkships. Held, that the Plaintiff was entitled to dissolve the partnership as to B., but not as against the other partner (the son of B.), and that he was not entitled to dissolve it by notice under the 16th clause without the concurrence of his co-partner (the son).
That B., not having procured or endeavoured to procure for the partnership firm the appointments to the several offices or clerkships, so as to give the Plaintiff at the dissolution either a share of the profits of the offices or the chance of competing for them, but such appointments having been procured for B. and his son to the exclusion of the Plaintiff, B. and his son were not to be allowed to retain the offices for their exclusive benefit.
That,inasmuch as, from the nature of the offices, they could not be sold, nor could any manager or receiver be appointed to carry them on, the Defendants ought to be charged with the value of the offices in the partnership accounts.
That, the Plaintiff having given a notice of dissolution (acting under the 16th clause), and his co-partner having adopted it, the partnership should be treated as dissolved from the time of the notice, although not with the consequences attaching to a dissolution under the 15th clause.
That, the consequences of a dissolution uncler the 15th clause not having attached, the Plaintiff, therefore, was not entitled to the injunction to restrain the Defendants from practising within 30 miles.
An agreement that, if any of several partners should not diligently and faithfully employ himself in carrying on the partnership practice, the others might give notice of dissolution, construed to refer to the diligent and faithful discharge by each partner of the portion of business carried on by him.
This case is cited by:

  • Cited – Faulks -v- Faulks ChD ([1992] 1 EGLR 9)
    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 . .