Category: Company

Weir and others v Secretary of State for Transport and Another: ChD 14 Oct 2005

The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted malice.’ They also complained of an interference with their possessions.
Held: The claim failed. The central accusation was that the respondent Minister had manipulated the situation in order to create an insolvency. No enginerring was required: ‘a provider of funds does not ‘create’ an insolvency by providing only that to which the recipient is entitled.’ and ‘I have no sufficient reason to find an intent to impair the financial interests of the shareholders in Group as being the sole, the predominant or as any intent lying behind Mr Byers’ actions.’

Judges:

Lindsay J

Citations:

[2005] EWHC 2192 (Ch)

Links:

Bailii

Statutes:

European Convention on Human Rights 1

Jurisdiction:

England and Wales

Citing:

Cited – Redgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Wisniewski v Central Manchester Health Authority CA 1997
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – Agrotexim and Others v Greece ECHR 24-Oct-1995
Hudoc Not necessary to examine preliminary objection (ratione temporis); Preliminary objection allowed (victim); Lack of jurisdiction (complaint inadmissible, new complaint)
The applicant companies held . .
Cited – Humberclyde Finance Group Ltd v Hicks 14-Nov-2001
. .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .

Cited by:

Cited – Office of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
Lists of cited by and citing cases may be incomplete.

Company, Administrative, Torts – Other, Human Rights

Updated: 25 October 2022; Ref: scu.231098

Equitable Life Assurance Society v Bowley and others: ComC 17 Oct 2003

The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out.
Held: It was no longer good law that directors might leave the conduct of the company’s business to competent management. Though section 727 might give relief to directors who had been negligent, but who had nevertheless acted reasonably, summary relief in this case was inappropriate. On the issue of the various elements of negligence claims it was not correct to characterise the claims as without a real prospect of success.

Judges:

The Honourable Mr Justice Langley

Citations:

[2003] EWHC 2263 (Comm)

Links:

Bailii

Statutes:

Companies Act 1985 727

Citing:

See also – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Re D’ Jan of London Limited 1993
The court described the roles of a director of a company: ‘ . . the duty of care owed by a director at common law is accurately stated in sec. 214(4) of the Insolvency Act 1986. It is the conduct of: a reasonably diligent person having both- (a) the . .
Cited – In re Barings plc (No 5) CA 2000
A finding of breach of duty is neither necessary nor of itself sufficient for a finding of unfitness. As the judge (at first instance) observed a person may be unfit even though no breach of duty is proved against him or may remain fit . .
No longer good law – In Re City Equitable Fire Insurance Company Limited ChD 1924
The duty of reasonable care expected of a company’s directors is generally said to be that of an ordinary prudent person might be expected to take in the circumstances on his own behalf, with the knowledge and experience of the director concerned. . .
Cited – Re Lands Allotment Company CA 1894
A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence

Updated: 25 October 2022; Ref: scu.187126

Criterion Properties Plc v Stratford UK Properties and others: CA 18 Dec 2002

The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In this case, the defendant knew of the unlawful activity, and had no arguable defence, and summary judgment should have been given.

Judges:

Lord Justice Brooke Lord Justice Carnwath

Citations:

[2002] EWCA Civ 1783, [2003] 1 WLR 218

Links:

Bailii

Statutes:

Limited Partnership Act 1907

Jurisdiction:

England and Wales

Citing:

Appeal from – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
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 . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Cayne and Another v Global Natural Resources Plc ChD 12-Aug-1982
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 – In Re Smith and Fawcett Ltd CA 1942
Directors to act Without Collateral Purpose
The primary duty of a director imposed by the general law is that he should act in what he considers to be the best interests of the company, and not for any collateral purpose. That duty is a subjective one that depends on the directors exercising . .
Cited – Teck Corporation Ltd v Millar 1972
The court discussed the validity of steps which might be taken by a company director to resist a take-over. Berger J said: ‘So how wide a latitude ought the directors to have? If a group is seeking to obtain control, must the directors ignore them? . .
Cited – Rolled Steel Products (Holdings) Ltd v British Steel Corporation and Others CA 1986
The plaintiff company had guaranteed borrowings, using powers within the memorandum of association, but for purposes which were held to be improper, because they were not in the interests of the plaintiff company itself. One issue was whether the . .
Cited – Howard Smith Limited v Ampol Petroleum Limited PC 14-Feb-1974
(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 – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Eagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd ChD 28-Sep-1994
A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a . .
Cited – Manchester Trust v Furness CA 1895
Lindley LJ said: ‘In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of . .
Cited – In re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Churchill v Walton CA 1967
In a criminal conspiracy to evade fuel duties, the fact that the defendant had first obtained counsel’s opinion was no defence. . .
See Also – Criterion Properties Plc v Stratford UK Properties Llc and others CA 18-Dec-2002
. .
Cited – Criterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .

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 . .
See Also – Criterion Properties Plc v Stratford UK Properties Llc and others CA 18-Dec-2002
. .
Appeal from – Criterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .
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 . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 25 October 2022; Ref: scu.188993

Regina v Brockley: CACD 25 Nov 1993

The offence of acting as a company director whilst being an undischarged bankrupt is an absolute offence.

Citations:

Gazette 26-Jan-1994, Times 25-Nov-1993, [1994] 99 Cr App R 385

Statutes:

Company Directors Disqualification Act 1986 11(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Doring CACD 24-Jun-2002
The defendant was charged with acting as a company director whilst being an undischarged bankrupt, and also of being involved in the management of a company using a prohibited name. She said that she had not known that the part she took in the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Crime

Updated: 25 October 2022; Ref: scu.86229

Regina v Evans (Andrew): CACD 16 Nov 1999

The Act was not solely punitive in its nature. The intention was, in addition, to provide protection to the public and other traders from the defendants activities. This meant that there need be no mathematical link between the length of any custodial sentence, and the length of any ban from acting as a company director.

Citations:

Times 16-Nov-1999

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Criminal Sentencing, Company

Updated: 25 October 2022; Ref: scu.85249

JKX Oil and Gas Plc and Others v Eclairs Group Ltd: CA 13 May 2014

The court was asked as to important issues on the validity and constitutionality of restrictions imposed by the directors pursuant to Part 22 of the 2006 Act and the company’s Articles of Association, including the purported disenfranchisement of two of JKX’s shareholders, registered as the holders of 27.55% and 11.45% of the company’s ordinary shares, for the purposes of voting at JKX’s Annual General Meeting on 5th June 2013. At the expedited trial of the conjoined claims by the beneficial owners of those shareholdings, Mann J had declared that the Restrictions had been ineffective because the directors had, in imposing them, been motivated by an improper purpose. Held (majority): The appeal was allowed.
The proper purpose doctrine had ‘no significant place in the operation of article 42 or Part 22 of the 2006 Act’ Restrictions arising from a shareholder’s failure to comply with a disclosure notice did not reflect a ‘unilateral’ exercise of power by the board; the shareholder could avoid the restrictions by complying with the disclosure notice. ‘Why should the law protect him when all he had to do was tell the truth?’.
The restrictions on the voting and other rights attaching to the shares was the very thing that article 42 was designed to permit if the directors reasonably considered that the disclosure notices had not been complied with. So once the board had reached that conclusion, there was no further limitation on their power to issue a restriction notice.
No limitation on the proper purpose of a restriction notice was expressed, either in Part 22 of the 2006 Act or in article 42 of JKX’s articles. There was no room for the implication of such a purpose, because in the nature of things the statutory disclosure procedure was most likely to be operated at a time of controversy in the company’s affairs. The draftsman was unlikely to have intended a detailed enquiry into the minds of directors ‘in what may often be a rapidly changing scene’; and, in a battle for control against predators who were ‘up to something subversive but secret’ the directors would naturally want to see them disenfranchised. The result of applying the proper purpose rule would be to emasculate the statutory scheme and the corresponding provisions of article 42. Any other view ‘would only be an encouragement to deceitful conduct and not something which English company law should countenance’
Briggs LJ, dissenting, said that the purpose of article 42 was to encourage or coerce the provision of information which had been requested under section 793, with the rider that it was also to prevent the accrual of any unfair advantage to any person as a result of the failure to comply with such a request. Even with that limited expansion, on the judge’s findings of fact the directors’ decision to impose restrictions under article 42 was improper, and there were no satisfactory reasons why the rule should not be applied to the draconian powers conferred by article 42 of JKX’s articles: ‘Furthermore, I consider it important that the court should uphold the proper purpose principle in relation to the exercise of fiduciary powers by directors, all the more so where the power is capable of affecting, or interfering with, the constitutional balance between shareholders and directors, and between particular groups of shareholders. The temptation on directors, anxious to protect their company from what they regard as the adverse consequences of a course of action proposed by shareholders, to interfere in that way, whether by the issue of shares to their supporters, or by disenfranchisement of their opponents’ shares, may be very hard to resist, unless the consequences of improprieties of that kind are clearly laid down and adhered to by the court.’

Judges:

Longmore, Briggs LJJ, Sir Robin Jacob

Citations:

[2014] EWCA Civ 640, [2014] BUS LR 835, [2014] WLR(D) 204

Links:

Bailii, WLRD

Statutes:

Companies Act 2006

Jurisdiction:

England and Wales

Citing:

Cited – In re Ricardo Group Plc ChD 1989
The company had obtained a restrictions order under Part XV. An application was made to the court for relief.
Held: On the facts relief was refused. The respondent had secured discharge of the order under the liberty to apply, having provided . .
Cited – Re Geers Gross plc CA 1988
Nourse LJ said: ‘the clear purpose of [Pt VI of the 1985 Act] is to give a public company, and ultimately the public at large, a prima facie unqualified right to know who are the real owners of its voting shares.’ . .
Appeal from – Eclairs Group Ltd and Another v JKX Oil and Gas Plc and Others ChD 30-Aug-2013
Challenge was made to restrictions on voting imposed on the directors under the company’s articles.
Held: The purpose of article 42 is to provide a ‘sanction or incentive’ to remedy a failure to comply with the disclosure notice. . .
Cited – In re TR Technology Investment Trust Plc ChD 1988
The court was asked whether the limition on the circumstances in which the court could remove restrictions imposed under section 794, applied to a merely interim order.
Held: It did not. Hoffmann J said of the powers t demand information given . .

Cited by:

Appeal from – Eclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 October 2022; Ref: scu.525471

First Subsea Ltd v Balltec Ltd and Others: CA 30 Mar 2017

The court considered the application of section 21 of the 1980 Act to a claim against a company director for breach of fiduciary duty.

Judges:

Patten, Kitchin, Briggs LJJ

Citations:

[2017] EWCA Civ 186, [2017] WLR(D) 232, [2017] 3 WLR 896, [2018] Ch 25

Links:

Bailii, WLRD

Statutes:

Limitation Act 1980 21

Jurisdiction:

England and Wales

Company, Limitation

Updated: 24 October 2022; Ref: scu.581338

Hopton v Miller: ChD 31 Aug 2010

The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded from presenting evidence himself. He said that, the accounts having been drawn, Mrs Miller was precluded under section 42 from asserting an interest not shown in them. She asserted that the accounts understated the business.
Held: The court considered and construed the accounts and awarded an apportionment accordingly.

Judges:

Behrens J

Citations:

[2010] EWHC 2232 (Ch)

Links:

Bailii

Statutes:

Partnership Act 1890 42

Jurisdiction:

England and Wales

Citing:

Cited – Bernard v Josephs CA 30-Mar-1982
The court considered the division of proceeds of sale of a house bought by an unmarried couple.
Held: Where the trusts for which a property was purchased have been concluded, the house should be sold.
Griffiths LJ said: ‘the fact that . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Morris v Morris CA 22-Feb-2008
Absent an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition. . .
Cited – James v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Gill v Sandhu (No. 2) CA 2-Nov-2005
The court considered the valuation of asets on the dissolution of a partnership at will.
Held: The appeal was allowed. The proper share of a partner in the assets was his proportion ascertained from the partnership assets after they had all . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 23 October 2022; Ref: scu.423150

Eastaway v Secretary of State for Trade and Industry: CA 10 May 2007

The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking in the light of the ECHR judgment.
Held: The appeal was dismissed. The decision of the ECHR contained a finding and an award in satisfaction. No declaration could be made because the basis on whichj it was now sought, the impossibility of a fair trial, would not have been available to him at the time of the undertaking and could not be used to impugn it. He was not a victim within Human Rights law.

Judges:

Tuckey LJ, Rix LJ, Arden LJ

Citations:

[2007] EWCA Civ 425

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986, Human Rights Act 1998 2 7

Jurisdiction:

England and Wales

Citing:

Cited – In Re Manlon Trading Ltd CA 22-Jun-1995
Company Director Disqualification proceedings were struck out for delay. There has to be a balance between the public interest in securing the disqualification of bad directors and the prejudice to private citizens and the people subject to the . .
Cited – In Re Carecraft Construction Co Ltd ChD 13-Oct-1993
A court must hear evidence before disqualifying directors. Though the Director and the Secretary of State might reach an agreement as to what should happen, they could not displace the court in deciding what order should be made, and in making that . .
Cited – Re Rocksteady Services Ltd 2001
Director disqualification proceedings will not be struck out simply because there has been a delay in the course of the preparations for trial or even in the trial itself. . .
See Also – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
See Also – Secretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .
See Also – In Re Blackspur Group Plc; Secretary of State v Eastaway ChD 21-Jun-2001
The director was amongst a group against whom a director disqualification order was sought. He offered an undertaking, but the Secretary of State refused to accept this unless it was accompanied by a statement as to the factual basis on which it was . .
See Also – Secretary of State for Trade and Industry v Eastaway; Re Blackspur Group (No 3), Secretary of State for Trade and Industry v Davies and Others (No 2) CA 13-Sep-2001
. .
At ECHR – Eastaway v The United Kingdom ECHR 20-Jul-2004
The applicant had been proceeded against after the collapse of companies in which he was involved with very substantial debts. The proceedings had begun in July 1990, and lasted nearly nine years.
Held: Where proceedings could be expected to . .
Appeal from – Eastaway v Secretary of State for Trade and Industry and similar ChD 2-Mar-2006
. .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Re INS Realisations Ltd ChD 2006
The court has jurisdiction to set aside a schedule to an order containing a disqualification undertaking where ‘either some ground is shown which would be sufficient to discharge a private law contract or some ground of public interest is shown . .
Lists of cited by and citing cases may be incomplete.

Company, Human Rights

Updated: 23 October 2022; Ref: scu.251798

Ka Finanz AG v Sparkassen Versicherung AG Vienna Insurance Group: ECJ 7 Apr 2016

ECJ (Judgment) Reference for a preliminary ruling – Rome Convention – Applicable law – Cross-border merger – Directive 78/855/EEC – Directive 2005/56/EC – Merger by acquisition – Protection of creditors – Transfer of all the assets and liabilities of the company being acquired to the acquiring company

Citations:

C-483/14, [2016] EUECJ C-483/14, ECLI:EU:C:2016:205, [2016] WLR(D) 176, [2016] 3 WLR 691,[2016] 3 WLR 691, [2016] ILPr 24, [2016] QB 896, ECLI:EU:C:2016:205

Links:

Bailii, WLRD

Statutes:

Directive 78/855/EEC, Directive 2005/56/EC

Jurisdiction:

European

Company

Updated: 23 October 2022; Ref: scu.561985

Marino v FM Capital Partners Ltd: CA 26 Feb 2020

Citations:

[2020] EWCA Civ 245

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Marino v FM Capital Partners Ltd CA 2016
The test for proprietary injunctions the courts impose a stricter test on defendants wishing to use assets falling within the scope of the injunction to pay legal fees. . .
See Also – FM Capital Partners Ltd v Marino and Others ComC 11-Jul-2018
Claims for conspiracy to injure . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 22 October 2022; Ref: scu.648277

Re JN 2 Ltd: ChD 1978

The court will require any dispute as to the status or locus standi of a party to be resolved in separate proceedings before a winding-up petition is heard. The Court highlighted the extent and applicability of Section 224(1) of the 1948 Act, observing: ‘There seems to be no doubt that entry on the register is an essential qualification for a contributory who desires to present a petition, if he is not the original allottee and if the shares have not devolved on him through the death of a former holder;
for if neither condition is satisfied, section 224(1)(a)(ii) requires that the shares must have been held by him and registered in his name for at least six months during the preceding 18 months. Plainly, if a transferee is not and never has been on the register, he cannot satisfy that condition. And it would not seem to be an answer that he ought to have been on the register, unless, perhaps, the company has been ordered to place him on the register and has disobeyed that order.’

Judges:

Brightman J

Citations:

[1978] 1 WLR 183, [1977] 3 All ER 1104

Statutes:

Companies Act 1948 224(1)

Jurisdiction:

England and Wales

Cited by:

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

Company, Insolvency

Updated: 21 October 2022; Ref: scu.428281

Mactra Properties Ltd v Morshead Mansions Ltd and Others: ChD 6 Nov 2008

The block of flats was owned by a company in which each tenant owned one share. The claimant company had bought twenty five flats, and now sought to sell them, but the freeholder refused to register share transfers saying that the claimant was in arrears with its service charge payments. The court was asked to say whether the sole director was acting in bad faith. The director had given his evidence as to the reasons for his actions and had not been cross-examined as to them. The claimant alleged personal hostility as between the director and its own alter-ego owner.
Held: The declaration was refused. Brennan QC said: ‘the circumstances in which Mr Crowther refused to permit registration of the shares do not begin to justify a conclusion that he was acting in bad faith and otherwise than in accordance with MML’s established policy. ‘

Judges:

Brennan QC

Citations:

[2008] EWHC 2843 (Ch), [2009] BCC 335, [2009] 1 BCLC 179

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re Smith and Fawcett Ltd CA 1942
Directors to act Without Collateral Purpose
The primary duty of a director imposed by the general law is that he should act in what he considers to be the best interests of the company, and not for any collateral purpose. That duty is a subjective one that depends on the directors exercising . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Company

Updated: 21 October 2022; Ref: scu.374397

In re Pantone 485 Ltd: ChD 29 Nov 2001

The respondent Bain was a director of a number of connected companies, including Smarturgent and Pantone, both of which he indirectly controlled. The liquidator of both companies brought proceedings against Bain on a number of claims for breach of duty as a director, including that he had caused Smarturgent to spend a total of over andpound;86,000 for the benefit of Pantone. It was argued on behalf of Bain that this claim was time-barred, but the liquidator relied on section 21(1)(b).
Held: Field QC responded to the submission saying: ‘The claim against Mr Bain is not that he transferred Smarturgent’s money to himself but that he caused the company’s money to be spent not for Smarturgent’s benefit but for Pantone’s. Mr Shaw submitted that the fact that the machine was acquired and the rentals paid for the benefit of Pantone, a company in which Mr Bain had an indirect controlling interest through his shareholding in AS2 meant that he was to be regarded as having received the trust property . . In my judgment, as a matter of basic principle where a fiduciary uses his beneficiary’s money to confer a benefit on a company he controls he is denying the beneficiary’s title to the money for his own purposes and this amounts to a conversion for his own use. The same is true where a fiduciary causes his beneficiary to incur a liability for the benefit of a company which the fiduciary controls. Since this is what the applicant is in substance alleging under the MOVP claim, I hold that this claim is within section 21(1)(b) of the Limitation Act and is therefore not statute barred.’

Judges:

Richard Field QC HHJ

Citations:

[2001] EWHC 705 (Ch), [2002] 1 BCLC 266, [2001] 2 EGLR 103

Links:

Bailii

Statutes:

Limitation Act 1980 2(1)(b)

Jurisdiction:

England and Wales

Cited by:

Approved – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Lists of cited by and citing cases may be incomplete.

Company, Limitation

Updated: 21 October 2022; Ref: scu.372690

Enviroco Ltd v Farstad Supply A/S: ChD 22 May 2009

Judges:

Moss QC J

Citations:

[2009] EWHC 906 (Ch), [2009] 2 BCLC 225, [2009] 2 Lloyd’s Rep 666, [2009] BCC 648

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Farstad Supply As v Enviroco Ltd and Another SCS 23-Apr-2008
(Outer House) The pursuers alleged that the defendant service company was responsible in negligence for damage by fire to its oil rig supply vessel. It was said that oil they had failed to clear was released by piping when opened flowing onto a hot . .
See also – Farstad Supply AS v Enviroco Ltd and Another SCS 1-May-2009
. .

Cited by:

Appeal from – Enviroco Ltd v Farstad Supply A/S CA 18-Dec-2009
A company which would otherwise undoubtedly be the subsidiary of another company ceased to be so when the shares in the former company were charged by the latter company to a Scottish bank. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 21 October 2022; Ref: scu.346719

Employers’ Liability Policy ‘Trigger’ Litigation; Durham v BAI (Run off) Ltd etc: QBD 21 Nov 2008

The court heard six claims against companies restored to the register of companies to make claims under their insurance policies for personal injury in the form of death from mesothelioma from asbestos, and particularly whether liability could be found under the 1930 Act. The insurers maintained that any liability arose at the time of the exposure to the asbestos, and that therefore the limitation periods had long expired. The companies and personal representatives of the employees said that liability arose only as symptoms began to appear, and that the special exception to the normal rules as to liability in negligence estabished in Fairchild, should not apply when deciding whether any causative act for which they may be responsible occurred in a particular policy year.
Held: The claims against the insurance companies failed; the relevant insurances all responded on an exposure basis. Each of the policies should be interpreted as having a ‘causation wording’, and the liability ‘trigger’ under the Employer’s Liability policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed.

Judges:

Burton J

Citations:

[2008] EWHC 2692 (QB), [2009] 2 All ER 26, [2009] 1 All ER (Comm) 805, [2009] Lloyd’s Rep IR 295

Links:

Bailii

Statutes:

Third Party (Rights against Insurers) Act 1930, Employers’ Liability (Compulsory Insurance) Act 1969

Jurisdiction:

England and Wales

Citing:

Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .

Cited by:

Appeal from – Employers’ Liability Insurance ‘Trigger’ Litigation, Re CA 8-Oct-2010
Companies restored to the register, and the personal representatives of former employees, appealed against rejection of their claims from the insurers of the former companies for damages from mesothelioma following exposure to asbestos during . .
At first instance – Employers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Company, Limitation

Updated: 21 October 2022; Ref: scu.278222

One Step (Support) Ltd v Morris-Garner and Another: QBD 7 Jul 2014

The defendant had sold her interest in the claimant company, undertaking not to compete. The claimant now sought damages alleging a breach.
Held: The defendants had acted in breach of contract by breaching the non-compete covenants (although less extensively than had been assumed in the expert reports) between August 2007 and 20 December 2009, that they had also breached the non-solicit covenants between 20 December 2006 and 20 December 2009 by soliciting business from seven local authorities, and that the first defendant had also acted in breach of the contractual confidentiality clause and an equitable duty of confidence by appropriating the market research information in April 2006 and subsequently using it to set up Positive Living.
This was a prime example of a case in which Wrotham Park damages should be and were available. It would, he said, be difficult for the claimant to identify the financial loss it had suffered by reason of the defendants’ wrongful competition, not least because there was a degree of secrecy in the establishment of Positive Living’s business which had not been fully reversed by the disclosure process. In his judgment it would be just for the claimant to have the option of recovering damages in the amount which might reasonably have been demanded in 2007 for releasing the defendants from their covenants, not least because the covenants provided that the restraint was subject to consent, not to be unreasonably withheld.

Judges:

Phillips J

Citations:

[2014] EWHC 2213 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Wrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .

Cited by:

Appeal from – Morris-Garner and Another v One Step (Support) Ltd CA 22-Mar-2016
Alleged breach of non-solicitation covenants in the sale of a business providing ‘supported living’ services for children leaving care and vulnerable adults.
Held: The defendant’s appeal was dismissed.
The test was whether an award of . .
At QBD – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 19 October 2022; Ref: scu.533828

GW Pharmaceuticals Plc, Re (Part 26 of The Companies Act 2006): ChD 25 Mar 2021

Application by GW Pharmaceuticals plc for an order convening a meeting of its members for the purposes of considering and, if thought fit, approving a scheme of arrangement under Part 26 of the Companies Act 2006.

Judges:

Snowden J

Citations:

[2021] EWHC 716 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 17 October 2022; Ref: scu.660069

Shaker v Al-Bedrawi and others: CA 18 Oct 2002

Citations:

[2002] EWCA Civ 1452, [2003] Ch 350

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Ghassan Shaker and Others v Mohammed Al-Bedrawi and Others ChD 26-Jul-2001
. .
See Also – Shaker v Al-Bedrawi and others CA 2-Dec-2002
. .

Cited by:

See Also – Shaker v Al-Bedrawi and others CA 2-Dec-2002
. .
Cited – John Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 15 October 2022; Ref: scu.178095

Wagram Invest SA v Belgium: ECJ 23 Apr 2020

(Judgment) Reference for a preliminary ruling – Directive 78/660 / EEC – Annual accounts of certain types of companies – Principle of a faithful image – Acquisition of a financial asset by a public limited company – Entry in the income statement of a discount linked to a debt at more than one year, non-interest bearing, and entry of the purchase price of the fixed asset on the asset side of the balance sheet, less the discount

Citations:

C-640/18, [2020] EUECJ C-640/18, ECLI: EU: C: 2020: 293, [2019] EUECJ C-640/18_O

Links:

Bailii, Bailii

Jurisdiction:

European

Company

Updated: 14 October 2022; Ref: scu.660161

Antonio Gramsci Shipping Corp and Others v Stepanovs: ComC 25 Feb 2011

The claimant companies alleged that the defendants had used the claimant’s parent’s companies wrongfully to syphon off money from the claimants by interposing contract between the lcimants and their proper customers. In this action the claimant sought to pierce the corporate veil.

Judges:

Burton J

Citations:

[2011] EWHC 333 (Comm), [2011] 1 Lloyds Law Reports 647, [2011] 1 CLC 396, [2012] BCC 182, [2012] 1 All ER (Comm) 293, [2012] 1 BCLC 561, [2011] Bus LR D117 [2011] Bus LR D117

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Antonio Gramsci Shipping Corporation and Others v Recoletos Ltd and Others ComC 24-May-2010
The claimants sought summary judgment in their claims alleging fraud by the several defendants.
Held: Gross J granted leave to the Corporate Defendants to defend only upon terms of (in effect) a payment into court of $40 million. . .

Cited by:

Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 12 October 2022; Ref: scu.430288

Regina (Gladstone plc) v Manchester City Magistrates Court: QBD 18 Nov 2004

It was alleged that at the company’s annual genneral meeting the proposed defendant had assaulted the company’s chairman. The company prosecuted him. The magistrate dismissed the charge saying that the company had no standing to conduct such a prosecution, there being no public benefit in the company undertaking the prosecution.
Held: The company had a proper interest in the orderly conduct of its meetings, and could undertake the prosecution. Such actions must be exceptional, and the court would not want them to be used to stifle opposition to the management of the company.

Judges:

Rose, Leveson JJ

Citations:

[2004] EWHC 2806 (Admin), Times 26-Nov-2004, [2005] 1 WLR 1987, [2005] 2 All ER 56

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ewing, Regina (on the Application of) v Davis Admn 2-Jul-2007
The court considered whether the District Judge had been correct to refuse to issue summonses for private prosecutions where there was a suggestion that only a private dispute at stake.
Held: It ‘never was any requirement that a private . .
Cited – Rollins, Regina v CACD 9-Oct-2009
The court was asked whether the Financial Services Authority had itself the power to prosecute offences under the 2002 Act. The defence said that the FSA’s powers were limited to offences under the 2000 Act. The FSA relied on its common law power to . .
Cited – Scopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Company

Updated: 12 October 2022; Ref: scu.220170

Regina v Vandervell: CACD 30 Oct 1997

The defendant had been convicted of being involved in the management of a company and of obtaining credit, whilst being an undischarged bankrupt.
Held: These were serious and repeated offences. The sentence of four years and three months imprisonment was not excessive.

Judges:

Lord Justice Waller Mr Justice Owen And Mr Justice Sullivan

Citations:

[1997] EWCA Crim 2716

Jurisdiction:

England and Wales

Citing:

Distinguished – Regina v Theivendran CACD 1992
For eight offences of being concerned with the management of a company whilst an undischarged bankrupt, a sentence of nine months’ imprisonment was reduced to six months. There had been a breach of the order but there had been no dishonesty, and . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Insolvency, Company

Updated: 11 October 2022; Ref: scu.152171

The Secretary of State for Business, Energy and Industrial Strategy v Geoghegan and Others: ChD 23 Mar 2021

Whether members of a limited liability partnership with no management involvement were subject to the disqualification procedures of the 1986 Act.

Judges:

Mr Justice Michael Green

Citations:

[2021] EWHC 672 (Ch)

Links:

Bailii

Statutes:

Limited Liability Partnership Regulations 2001, Company Directors Disqualification Act 1986, Companies Act 2006

Jurisdiction:

England and Wales

Company

Updated: 08 October 2022; Ref: scu.659930

in Re Resinoid and Mica Products Ltd: CA 1967

(From 1967) An order extending time for registration of a charge will not normally be made after a company has gone into liquidation.

Citations:

[1982] 3 All ER 677

Jurisdiction:

England and Wales

Cited by:

Cited – Victoria Housing Estates Ltd v Ashpurton Estates Ltd CA 1982
Although the Court has jurisdiction to extend the time for registration of a charge, its settled practice is not to do so when the company that granted the charge has already entered into liquidation. An application to extend the time for . .
Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 October 2022; Ref: scu.444532

In re MIG Trust Ltd: CA 1933

An application under section 85 of the 1929 Act was opposed by the company at an early stage and before the matter came on for hearing. The mortgagor company was hopelessly insolvent and a winding up petition was impending. A few days later, on the instructions of a director of the company who had an interest in the mortgagee company, the opposition of the company was withdrawn and the order was made. Shortly thereafter, the company was wound up. At first instance Eve J had set aside the registration of the charge as a fraudulent preference.
Held: The appeal was allowed. Lord Hanworth MR said that the Act in permitting the late registration of charges over company assets gave: ‘the widest possible discretion to the Court in circumstances which need not show that the omission was accidental or due to inadvertence but which would be sufficient on other grounds to make it just and equitable to grant relief.’

Judges:

Lord Hanworth MR

Citations:

[1933] Ch 542

Statutes:

Companies Act 1929 85

Jurisdiction:

England and Wales

Cited by:

Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 October 2022; Ref: scu.444534

In re I C Johnson: CA 1 May 1902

Kekewich J had permitted the late registration of a company debenture, but included the proviso introduced by Buckley J in In re Joplin Brewery. There were pari passu debentures, some issued before 1 January 1901, some after. The company was solvent. The post 1901 unregistered debenture holders appealed, seeking a better position different to that brought about by Buckley J’s decision in In re S Abrahams (also with pari passu debentures issued before and after 1 January 1901).
Held: The appeal succeeded. The Court drew a qualification to the In re Joplin Brewery condition which excluded the earlier issued debentures from its effect, so as to maintain ranking pari passu status between the contractually equal debentures. Cozens-Hardy LJ added a rider to his reasons in which he doubted whether the proviso as drafted by Buckley J in In re Joplin Brewery would ever have any effect in protecting unsecured creditors: ‘who had not taken some proceedings to get a charge or a security upon the goods.’

Judges:

Cozens-Hardy LJ

Citations:

[1902] 2 Ch 101

Jurisdiction:

England and Wales

Citing:

Qualified – Re Joplin Brewery Co Ltd ChD 1902
The applicants, owners of a solvent family business, sought to register a charge over the company’s assets out of time.
Held: Buckley J saw the application under s 15 of the 1900 Act as a similar application to the application to register out . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 October 2022; Ref: scu.444536

In re Ehrmann Brothers Ltd: CA 1906

Debentures had been issued after 1 January 1901 secured by a floating charge. It was was not registered in time. The judge had permitted registration, with a proviso as contained in In re I C Johnson, and registration was completed. A compulsory winding up petition was then filed, and the company then itself resolved to wind up. Buckley J allowed the petitioning creditor to take part in an inquiry as to the priorities between the debenture holder and the unsecured creditors. In that inquiry, Joyce J gave the unsecured creditors equal priority with the registered debenture holders.
Held: The debenture holder’s appeal succeeded, though the intervention of winding up before registration created rights in all the unsecured creditors protected by the proviso.
Vaughan Williams LJ said that the registration (pursuant to the extension) meant that the debentures were ‘no longer void’, limiting the protective effect of the proviso to those who had acquired rights of, or against, the property the subject of the charge prior to registration. He said that Buckley J had expressed the matter too widely in In re Joplin Brewery if he had intended that the proviso protect unsecured creditors generally. He then referred to the dictum of Cozens-Hardy LJ in In re I C Johnson and made clear his view as to the effect of winding up: ‘Of course, that does not mean only creditors who individually have so done, [that is as Cozens-Hardy LJ in In re I C Johnson said: taken some proceedings to get a charge or security], but creditors who come within the operation and benefit of an order for winding-up giving the creditors a right to have such property administered for their benefit. That is the conclusion which I have come to in this case. I think that the intention of the Legislature, as appears by the statute itself, was, in a case where the omission to register was accidental and the extension of time was a just thing to grant, to place the debenture-holders in the same position as they would have been in if they had registered in due time. But of course the Legislature had to make provision for the rights of those who had obtained rights which existed at the time when the order for the extension of time was made. I do not think that the Legislature meant by that that an unsecured creditor, merely because he was an unsecured creditor at the time the extension order was made, should be allowed to say, ‘So far as I am concerned, that debenture which was not registered in due time, but which was registered under the order for extension, is a void debenture.’

Judges:

Vaughan Williams, Romer and Cozens-Hardy LJJ

Citations:

[1906] 2 Ch 697

Jurisdiction:

England and Wales

Citing:

Cited – Re Joplin Brewery Co Ltd ChD 1902
The applicants, owners of a solvent family business, sought to register a charge over the company’s assets out of time.
Held: Buckley J saw the application under s 15 of the 1900 Act as a similar application to the application to register out . .

Cited by:

Cited – Rehman v Chamberlain and Another ChD 6-Sep-2011
The claimant asserted as against the liquidator, a floating and registered charge over the company’s assets. The liquidator said that it had been granted within the twelve months prior to the onset of the insolvency, was caught by section 245(3)(b), . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 07 October 2022; Ref: scu.444535

Stonegate Securities Ltd v Gregory: CA 1980

The practice of the Companies Court is to dismiss a creditor’s petition based on a debt which is disputed by the company in good faith and on substantial grounds. Buckley LJ said: ‘If the Company in good faith and on substantial grounds disputes any liability in respect of the alleged debt, the petition will be dismissed, or if the matter is brought before a court before the petition is issued, its presentation will in normal circumstances be restrained. That is because a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed.’

Judges:

Buckley LJ

Citations:

[1980] Ch 576

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 October 2022; Ref: scu.396765

In re H R Harmer Ltd: CA 1958

Shareholders who receive their shares as a gift but afterwards work in the business may become entitled to enforce equitable restraints upon the conduct of the majority shareholder. To succeed the applicant must show some detriment in their capacity as a member of the company, and not as a director, though a wrongful exclusion of a member from participation in the management of the company may amount to such.
A majority shareholder has no obligation to choose as a representative director the most suitable person for the position. A majority shareholder may appoint his friend or a person whom he might reasonably expect usually to vote in a certain way.
The mere subordination of the wishes of the minority by the exercise of the voting power of the majority is not of itself oppressive.
Jenkins LJ accepted a submission that: ‘If a person, relying on majority control in a point of voting power dispenses with the proper procedure for producing the result he desires to achieve, and simply insists on this or that being done or omitted, his conduct is oppressive because it deprived the minority of shareholders of their right as members of the company to have its affairs conducted in accordance with its articles of association’.

Judges:

Jenkins LJ

Citations:

[1959] 1 WLR 62, [1958] 3 All ER 689

Statutes:

Companies Act 1948

Jurisdiction:

England and Wales

Cited by:

Cited – 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 – Arrow Nominees Inc, Blackledge (L) v Blackledge (G), Blackledge (M), Blackledge (GR and MM) ChD 21-Jan-2000
The claimants had begun proceedings claiming unfair prejudice by the defendants in the management of the business. The defendants sought to have the petition struck out saying that the claimants had used falsified documents to base their petition. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 October 2022; Ref: scu.444675

Sportech Plc, Re An Order: SCS 7 Dec 2011

‘Unopposed application by Sportech plc (‘the company’) for an order cancelling its share premium account, which I have granted, raised questions as to the correct approach to the protection of creditors where the cancellation would give rise to distributable reserves. ‘

Citations:

[2012] ScotCS CSOH – 58

Links:

Bailii

Scotland, Company

Updated: 06 October 2022; Ref: scu.452644

BTI 2014 Llc v Sequana SA and Others: CA 6 Feb 2019

The Court considered a Director’s duty to act in the interests of his company’s creditors. The Directors were said to have paid out an excessive dividend to put assets beyond the reach of its creditors.

Judges:

Longmore, David Richards, Henderson LJJ

Citations:

[2019] EWCA Civ 112, [2019] 2 All ER (Comm) 13, [2019] BCC 631, [2019] 2 All ER 784, [2019] WLR(D) 68, [2019] BPIR 562, [2019] 1 BCLC 347, [2019] Bus LR 2178

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986 423, Companies Act 2006 172(3)

Jurisdiction:

England and Wales

Cited by:

Appeal from – BTI 2014 LLC v Sequana SA and others SC 5-Oct-2022
Sequana’s subsidiary was liable to indemnify BAT for costs arising from the clean-up of a polluted river. The directors of the subsidiary resolved that it should pay a substantial dividend to Sequana, without – BAT says – leaving enough money in the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 06 October 2022; Ref: scu.633097

West Mercia Safetywear Ltd v Dodds: CA 1988

If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of insolvency, even a written consent will not totally safeguard against a claim from a liquidator.

Judges:

Dillon LJ, Croom-Johnson LJ and Caulfield J

Citations:

[1988] BCLC 250, [1988] BCC 30

Jurisdiction:

England and Wales

Citing:

Approved – Kinsela v Russell Kinsela Pty Ltd (In Liq) 1986
(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of . .

Cited by:

Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – 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 . .
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 – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
Cited – BTI 2014 LLC v Sequana SA and others SC 5-Oct-2022
Sequana’s subsidiary was liable to indemnify BAT for costs arising from the clean-up of a polluted river. The directors of the subsidiary resolved that it should pay a substantial dividend to Sequana, without – BAT says – leaving enough money in the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Leading Case

Updated: 06 October 2022; Ref: scu.188615

Fisher v Cadman and Others: ChD 14 Jun 2005

The trial was concluded and the judgment had been given, but before the order was handed down, the defendants applied to be allowed to provide further evidence.
Held: The standards of Ladd v Marshall might be applied in such a situation, but with a little more flexibility than an appeal court might have done, but the defendants had not shown that they could not have obtained this evidence with reasonable diligence. The appeal failed.

Judges:

Phillip Sales

Citations:

Times 23-Jun-2005, [2005] EWHC 377 (Ch), [2006] 1 BCLC 499

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Lists of cited by and citing cases may be incomplete.

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Updated: 05 October 2022; Ref: scu.227911