Category: Company

Bautiaa and Societe francaise maritime v Directeurs des services fiscaux des Landes and du Finistere: ECJ 13 Feb 1996

Europa Tax provisions – Harmonization of laws – Indirect taxes on the raising of capital – Capital duty levied on capital companies – Application to merger transactions effected by increasing the capital of the acquiring company – Imposition within the limits laid down by the Community rules – Preliminary rulings – Interpretation – Effect of interpretative judgments ratione temporis – Retroactive effect – Limits imposed by the Court – Conditions – Judgment on the interpretation of Directive 69/335 concerning indirect taxes on the raising of capital – Conditions not fulfilled – Significance for the Member State concerned of the financial consequences of the judgment – Not decisive.
A ruling on the interpretation of Community law takes effect from the date on which the rule interpreted entered into force.

Citations:

C-197/94, C-252/94, [1996] ECR I-505, [1996] EUECJ C-197/94

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 August 2022; Ref: scu.161389

Whittaker v Kershaw: CA 1890

A company contributory has no liability until the company concerned is wound up.

Citations:

(1890) 45 Ch D 320

Jurisdiction:

England and Wales

Cited by:

Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 August 2022; Ref: scu.641430

In re Pyle Works: CA 1890

The court was asked about a mortgage of the uncalled amounts on some partly paid shares and all the present and future property of the company. The issue was whether the mortgages extended to the calls to be made by the liquidator in the winding up of the company, so giving the mortgagees priority over the unsecured creditors.
Held: The appeal was rejected. The calls to be made by the liquidator were subject to the mortgages.
As regards In re Whitehouse and Co, Cotton LJ said: ‘Although the decision of the Master of the Rolls was right, yet in my opinion his observations upon the position of the liquidator, as regards a call made in the winding up upon a shareholder who is also a creditor of the company and claims a right to set-off his debt against the call, were, though unintentionally, erroneous; for he disallowed the set-off in that case, not on the true ground put by the Court of Appeal in Black and Co’s Case, but on the ground that a call is something that accrues to the liquidator, and is not a sum which is really due to the company, and that the shareholder’s debt is a debt due to him from the company and not from the liquidator.’
Any money paid under a call for unpaid capital cannot be treated as part of the property of the company concerned: it forms a statutory fund which can only come into existence once the company in question has gone into liquidation.

Judges:

Cotton, Lindley and Lopes LJJ

Citations:

(1890) 44 Ch D 534

Jurisdiction:

England and Wales

Citing:

Distinguished in part – In re Whitehouse and Co CA 1878
The Court was asked whether a contributory was entitled to set off a debt due to him from the company against calls made against him both by the company before the commencement of its liquidation and by the liquidator after the commencement of its . .

Cited by:

Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 08 August 2022; Ref: scu.641428

In re Auriferous Properties Ltd (No 1): ChD 1898

African Gold Properties Ltd (the Gold Company) held shares in Auriferous Properties Ltd (the Auriferous Company). In January 1896, the Auriferous Company became indebted to the Gold Company in the sum of pounds 2,775. Two calls were made by the directors of the Auriferous Company in January and June 1896, making the Gold Company liable in the sum of pounds 1,250. In December 1896, the Auriferous Company was wound up by order of the court. In January 1898 the Gold Company went into creditors’ voluntary winding up. The Gold Company lodged a proof for its debt in the winding up of the Auriferous Company. Acting by its liquidator, it issued a summons in the winding up of the Auriferous Company, raising for decision the question whether the debt owing to it by the Auriferous Company could be set off by the calls due by it to the Auriferous Company. The summons was subsequently amended by also being entitled in the matter of the winding up of the Gold Company.
Held: The liquidator of the company was entitled to prove in the winding up of a corporate contributory for the whole amount due by way of calls on the shares without set-off.

Judges:

Wright J

Citations:

[1898] 1 Ch 691

Jurisdiction:

England and Wales

Cited by:

See Also – In re Auriferous Properties Ltd (No 2) 1898
A claim was made in the liquidations by a creditor, but the creditor also held shares in the company which were not fully paid up.
Held: The creditor plaintiff could recover nothing as a creditor until all his liability as a contributory had . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 08 August 2022; Ref: scu.641431

In re Ayala Holdings Ltd (No 2): ChD 1996

The Court was asked as to an assignment to a creditor of all rights to and choses in action relating to or in any way arising out of or in connection with an action against a secured creditor. The rights purportedly assigned included the right to assert that certain dispositions of the company’s property after the commencement of the winding up were void under s.127 of the 1986 Act and that certain charges on the company’s property were void under s.395 Companies Act 1985 as against the liquidator for non-registration. The assignee argued that the assigned rights were property of the company which a liquidator can sell under para.6 of Sch.4.
Held:
Knox J asked what para.6 meant when it used the expression ‘property of the company’? He continued: ‘In my judgment [the assignee’s] argument overlooks one important distinction between property of the company, on the one hand, and the rights and powers of a liquidator on the other. The property of a company includes rights of action against third parties vested in a company at the commencement of the winding up and to that extent the principles in Ramsey v Hartley undoubtedly apply and such rights can, as I see it, be sold by a liquidator pursuant to para.6 of Sch.4. What is to be distinguished in my view are the statutory privileges and liberties conferred upon liquidators as such and indeed upon trustees in bankruptcy who are officers of the court and act under the court’s directions’.
Knox J referred to: ‘the fundamental distinction between assets of a company and rights conferred upon a liquidator in relation to the conduct of the liquidation. The former are assignable by sale under para 6 of Sch 4, the latter are not because in my view they are an incident of the office of the liquidator. The conclusion is, in my view, supported by the special status of the liquidator in company law.’
Knox J continued by referring to the powers of the liquidator under s.167 of the 1986 Act and said: ‘Now, if Mr Menzies is right in submitting that a liquidator can assign any of his powers the assignee, who is not a liquidator, would be free from any such control and I find it very difficult to envisage that Parliament could have contemplated that that was a permissible state of affairs.’

Judges:

Knox J

Citations:

[1996] 1 BCLC 467

Statutes:

Insolvency Act 1986 167

Jurisdiction:

England and Wales

Cited by:

Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 08 August 2022; Ref: scu.641432

In re Whitehouse and Co: CA 1878

The Court was asked whether a contributory was entitled to set off a debt due to him from the company against calls made against him both by the company before the commencement of its liquidation and by the liquidator after the commencement of its liquidation.
Held: Section 38 gave rise to a ‘debt due to the liquidator’ which could not therefore be the subject of set-off against a debt due from the company. As to the statutory liability to calls made by a liquidator for the purpose of enforcing the liability under section 38: ‘That is a new liability; he is to contribute; it is a new contribution. It is a mistake to call that a debt due to the company. It is no such thing. It is not, as has been supposed, in any shape or way a debt due to the company, but it is a liability to contribute to the assets of the company; and when we look further into the Act, it will be seen that it is a liability to contribution to be enforced by the liquidator. It is quite true that a call made before the winding up – and in the case before me a call was made before the winding up – is a debt due to the company, but that does not affect this new liability to contribution.’

Judges:

Sir George Jessel MR

Citations:

(1878) 9 Ch D 595

Statutes:

Companies Act 1862 38

Jurisdiction:

England and Wales

Cited by:

Distinguished in part – In re Pyle Works CA 1890
The court was asked about a mortgage of the uncalled amounts on some partly paid shares and all the present and future property of the company. The issue was whether the mortgages extended to the calls to be made by the liquidator in the winding up . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 08 August 2022; Ref: scu.641429

Paterson’s Trustees v Caledonian Heritable Security Co (Ltd), and Liquidator: SCS 17 Dec 1885

A heritable security company, the objects of which were to lend money on heritable security, and to ‘receive money by way of loan by cash-credit, debenture, deposit, or otherwise,’ and to do all such things as were conducive to these objects, received through their manager a loan, which he applied to the purchase of heritable property over which the company had lent money on a postponed bond, and which the prior bondholder had brought to sale. There being a doubt as to the company’s power to hold heritage, the manager made the purchase in his own name; he also granted the lender a bond for his money over the subjects. The company and its liquidator afterwards disputed liability for the loan, on the ground that the company had no authority to purchase or hold heritable property, that the manager was the proper debtor, and that he had no authority from the directors for the transaction. Held that the company having borrowed the money through its proper officer, who was entitled to accept money on loan, the lender had no concern with inquiring into its powers to apply it, and was therefore entitled to demand repayment.
Opinions that the purchase by such a company of heritage in order to avoid a sacrifice of its loan was not ultra vires.

Judges:

Lord M’Laren, Ordinary

Citations:

[1885] SLR 23 – 238

Links:

Bailii

Jurisdiction:

Scotland

Company

Updated: 08 August 2022; Ref: scu.580404

In re Nortel Companies and Others: SC 24 Jul 2013

The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices issued by the Pensions Regulator under the 2004 Act after the company had gone into administration, which required the company to put in place financial support for an occupational pension scheme, did not rank as an expense of the administration under rule 2.67(1)(f) of the 1986 Rules, but if by the time it went into administration it had for the preceding two years been vulnerable to a liability under a pension scheme, that liability remained an obligation which ranked in the administration and was provable as debt of the company.
By participating in litigation, a party submitted himself to a liability to pay costs in accordance with rules of court, contingently upon an order for costs being made against him. It followed that where proceedings were begun by or against a company before it went into liquidation, a liability for costs under an order made after it went into liquidation was provable as a contingent debt.
‘In a liquidation of a company and in an administration (where there is no question of trying to save the company or its business), the effect of insolvency legislation . . , as interpreted and extended by the courts, is that the order of priority for payment out of the company’s assets is, in summary terms, as follows:
(1) Fixed charge creditors;
(2) Expenses of the insolvency proceedings;
(3) Preferential creditors;
(4) Floating charge creditors;
(5) Unsecured provable debts;
(6) Statutory interest;
(7) Non-provable liabilities; and
(8) Shareholders.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson

Citations:

[2013] UKSC 52, [2013] 4 All ER 887, [2013] Bus LR 1056, [2013] 2 BCLC 135, [2013] Pens LR 299, [2013] BCC 624, [2013] BPIR 866, [2013] WLR(D) 300, [2014] 1 AC 209, UKSC 2011/0259, [2013] 3 WLR 504

Links:

Bailii, WLRD, Bailii Summary, SC Summary, SC

Statutes:

Insolvency Rules 1986 2.67(1)(f), Insolvency (Amendment) Rules 2006, Insolvency (Amendment) Rules 2003, Pensions Act 2004 43

Jurisdiction:

England and Wales

Citing:

At first instance (disapproved) – Bloom and Others v The Pensions Regulator (Nortel, Re) ChD 10-Dec-2010
Applications for directions by the administrators of twenty companies in two groups, all raising the same common questions as to the effect of the Financial Support Direction regime created by the Pensions Act 2004 upon companies in administration . .
Appeal from – Bloom and Others v The Pensions Regulator and Others; In re Nortel GMBH (in administration CA 14-Oct-2011
‘These appeals raise important and difficult questions posed by the impact of legislation for the protection of pension funds upon companies which are undergoing an insolvency process.’ . .
Cited – In re Sutherland, dec’d; Winter v Inland Revenue Commissioners HL 1963
The concept of a contingent liability was considered.
Held: In Scots law, a contingent liability is a liability which, by reason of something done by the person bound, may or may not arise depending on the happening of a future event.
Cited – In re SBA Properties Ltd ChD 1967
A court action had been raised in the name of a company without authority, giving rise to a possible liability in expenses to the defendants. One of the defendants claimed that, in the event that the company’s liquidator ratified the action, that . .
Cited – In re ABC Coupler and Engineering Co Ltd (No 3) ChD 1970
The liquidator when appointed closed down the business which had been conducted on the premises, had the company’s plant and machinery valued and thought about what he should do.
Held: The rent did not become a liquidation expense until some . .
Cited – Kahn and Another v Commissioners of Inland Revenue; In re Toshoku Finance plc HL 20-Feb-2002
A company went into liquidation, being owed substantial sums by another company in the same group, but itself insolvent. A settlement did not include accrued interest, but was claimed to be taxed as if it had, and on an accruals basis. If so, was . .
Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Cited – Steele, Regina (on the Application of) v Birmingham City Council and The Secretary of State for Work and Pensions CA 16-Dec-2005
The claimant had received an overpayment of benefits (Job seeker’s allowance), but then was made bankrupt. He now said that this was a debt in the bankruptcy.
Held: It was not. At the date of the bankruptcy order, the possible reclaim was not . .
Cited – In re T and N Ltd and Others (No 3) ChD 16-Jun-2006
The court considered the application of ‘the bankruptcy template of section 382 to the rules governing the winding up of companies’.
Held: The phrase ‘obligation incurred’ in Rule 13.2(1)(b) was inapt to describe a common law duty of care in . .
Cited – In re Bluck, Ex parte Bluck 1887
The discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made . .
Cited – In re A Debtor (No 68 of 1911) 1911
. .
Cited – In re Pitchford 11-Jan-1924
. .
Cited – In re Smith ex parte Edwards 1886
The parties to an arbitration agreement had agreed to pay whatever costs the arbitrator decided in his discretion to award. The losing party then went bankrupt.
Held: His bankruptcy did not relieve him of his liability for the costs. The . .
Cited – In re British Gold Fields of West Africa 1899
An order for costs could be proved where the action was in respect of a provable debt or liability. In such a case they were regarded as an addition to the sum recovered. . .
Approved – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Disapproved – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Disapproved – Steele v Mooney and others CA 8-Feb-2005
The claimant had sought an extension of time for service of her claim form in her action for personal injury. The solicitors in error did not include the words ‘claim form’ in their request. The judge had initially held the error was one of drafting . .
Cited – The Carron Iron Company Proprietors v Maclaren, Dawson, Stainton PC 23-Jul-1855
If the circumstances of a case are such as would make it the duty of one court in this country to restrain a party from instituting proceedings in another court here, they will also warrant it in imposing on him a similar restraint with regard to . .
Cited – Ex parte Llynvi Coal and Iron Co; In re Hide 1871
The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as . .
Cited – In re Trent and Humber Shipbuilding Co; Bailey and Leetham’s Case 1869
The court was asked whether costs awarded against a company were costs in the winding up.
Held: Where a creditor has obtained leave of the court to bring proceedings against a company in liquidation, any costs to which the creditor would . .
Cited – In re International Marine Hydropathic Co CA 1884
Where rates become due in respect of land occupied by a liquidator for the purpose of the winding up, the liquidator is liable to meet those rates. . .
Cited – In re National Arms and Ammunition Co CA 1885
‘If the company retains the possession of property which would be rateable in the hands of anyone else, it is only reasonable that it should be rateable in the hands of the company . . the true test is whether there has been a beneficial occupation . .
Cited – In re Blazer Fire Lighter Ltd 1895
The liquidator had closed the business and done nothing on the premises except to instal a caretaker to protect them from vandalism. That was sufficient to continue the company in rateable occupation. So the rates were an expense of the liquidation. . .
Cited – In re Wenborn and Co 1905
Buckley J held: ‘When the voluntary liquidator, or the liquidator in a compulsory winding up, comes to the Court for leave to bring or defend an action by or against the company, and obtains this leave, the judge in effect pledges the assets of the . .
Cited – In re Beni-Felkai Mining Co Ltd 1933
A liquidator’s remuneration is not encompassed by the word ‘expenses’. The term ‘expenses’ is not a term of art. It may include any expenses which the liquidator may be compelled to pay in respect of his acts in the course of a proper liquidation of . .
Cited – In re Mesco Properties Ltd CA 1980
Tax legislation provided that the company was chargeable to corporation tax on a capital gain arising in the winding up.
Held: The appeal failed. It was a tax which the liquidator was bound to discharge by payment, and the payment was a . .
Cited – Exeter City Council v Bairstow and others; Re Trident Fashions plc CA 10-Mar-2006
. .
Cited – Burton, Re Direction of Assets; In re Thomas v Burton, liquidator of Ben Line Steamers Ltd SCS 24-Dec-2010
Outer House, Court of Session . .
Cited – In re Condon, Ex parte James 1874
The Trustee in bankruptcy has relevant duties as the Trustee as an officer of the Court. Such a Trustee would not engage in conduct which could be seen to involve an unfair use of that position, and ‘where it would be unfair’ for a trustee in . .
Cited – In Re Kentish Homes Ltd ChD 31-Mar-1993
The question was whether a post-liquidation liability to community charge on empty flats was an expense of the liquidation.
Held: The company was the chargeable person in respect of the flats for the relevant periods, but the liability was . .
Cited – Re T H Knitwear (Wholesale) Ltd CA 1988
Subrogation is a remedy, not a cause of action. Subrogation of Customs and Excise to a creditor’s right of proof in the winding up of a supplier was refused as it would have been contrary to the statutory scheme for the administration of VAT. . .
Cited – In Re Oriental Inland Steam Company ex parte Scinde Railway Company CA 1874
The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to . .
Cited – In re Clark (a bankrupt); ex parte the Trustee v Texaco Ltd ChD 1975
Walton J restated the rule in In re James: ‘the rule provides that where it would be unfair for a trustee to take full advantage of his legal rights as such, the court will order him not to do so, and, indeed, will order him to return money which he . .
Cited – In re UCT (UK) Ltd ChD 2001
Arden J was asked to approve aproposal that the company should go into voluntary liquidation, on the basis that, prior to that happening, the administrators would pay into a trust account in their own name a sum equal to the total amount owing to . .
Cited – Getliffe and Another, Re Lune Metal Products Ltd CA 14-Dec-2006
. .

Cited by:

Cited – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Employment, Company

Updated: 07 August 2022; Ref: scu.513677

In re Overend Gurney and Co (Grissell’s case): 1866

On the insolvency of a company, no cross claim may be set off against the company member’s liability for unpaid capital, for debt. Lord Cheldmsford LC said: ‘If the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion of a debt due to the member of a company upon whom it is made, it necessarily follows in the last place, that the amount of such call must be paid before there can be any right to receive a dividend with the other creditors. The amount of the call being paid, the member of the company stands exactly on the footing of the other creditors with respect to a dividend upon the debt due to him from the company. The dividend will be of course upon the whole debt, and the member of the company will from time to time, when dividends are declared, receive them in like manner when either no call has been made, or having been made, when he has paid the amount of it.’

Judges:

Lord Chelmsford LC

Citations:

(1866) LR 1 Ch App 528

Jurisdiction:

England and Wales

Cited by:

Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 07 August 2022; Ref: scu.449849

Choudhary and Others v Bhatter and Others: CA 11 Nov 2009

The parties disputed matters within a company in India. The defendant appealed against an order under which the court had accepted jurisdiction.
Held: The appeal succeeded. The opening words of article 22 giving jurisdiction ‘regardless of domicile’ were not intended to apply to the courts of a member state, such as Denmark, which was not bound by the regulation; and therefore the direction was not intended to apply as between the courts of member states and the courts of non-member states. The proper venue was India.

Judges:

Ward LJ, Stanley Burnton LJ, Sir John Chadwick

Citations:

[2009] EWCA Civ 1176, [2009] WLR (D) 326

Links:

Times, Bailii, WLRD

Statutes:

Council Regulation 44/2001/EC (OJ January 16, 2001 L12/1) 22

Jurisdiction:

England and Wales

Citing:

Cited – Choudhary and Others v Bhatter and Others CA 29-Apr-2009
Application for security for costs in respect of an appeal . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, European, Company

Updated: 07 August 2022; Ref: scu.381729

Stocznia Gdanska Sa v Latreefers Inc: ComC 21 Dec 1998

In some cases the appointment of a provisional liquidator of an insolvent company may be justified because of his ability to investigate possible claims against directors for fraudulent or wrongful trading.

Judges:

Lloyd J

Citations:

[1998] EWHC 1203 (Comm), [1999] 1 BCLC 271

Links:

Bailii

Statutes:

Insolvency Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 07 August 2022; Ref: scu.381748

Deutsche Bank Ag v Sebastian Holdings Inc: ComC 1 Dec 2009

Citations:

[2009] EWHC 3069 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 28-Apr-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 16-Dec-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 13-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.

Company, Banking

Updated: 07 August 2022; Ref: scu.381695

Grant v Bragg and Another: CA 20 Oct 2009

The parties disputed the existence of an enforceable contract for the purchase of a shareholding in a company, and contained within a shareholder agreement.

Judges:

Lord Neuberger MR, Smih, Sullivan LJJ

Citations:

[2009] EWCA Civ 1228, [2010] 1 All ER (Comm) 1166

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Company

Updated: 07 August 2022; Ref: scu.381573

In re Panama New Zealand and Australian Royal Mail Co: 1870

The company had charged its ‘undertaking and all sums of money arising therefrom’.
Held: ‘undertaking’ meant ‘all the property of the company, not only which existed at the date of the debenture, but which might afterwards become the property of the company.’ and the word ‘undertaking’ ‘necessarily infers that the company will go on, and that the debenture holder could not interfere until either the interest which was due was unpaid, or until the period had arrived for the payment of his principal, and that principal was unpaid’.

Judges:

Gifford LJ

Citations:

(1870) 5 Ch App 318

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 06 August 2022; Ref: scu.228300

Madden v UDC Finance Limited and others: PC 30 Oct 1997

(New Zealand) The company issued a debenture to secure the funds for the purchase of machinery, but the debenture was not at first dated. It was submitted that the addition of the dates changed the nature of the loan and was ineffective being insufficiently evidenced in writing.
Held: The insertion of the dates was a matter of pure form and was not a material alteration invalidating the charge. The guarantor alleged that since he had not consented to the sale of the equipment he was discharged from his guarantee. That argument failed from a proper construction of the agreement.

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Saville, Mr Justice Gault

Citations:

[1997] UKPC 52

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Applied – Foster v Foster CA 16-Apr-2003
The marriage had been short, there were no children, both parties were working, and each could support themselves providing themselves with accomodation. The wife had successfully appealed a finding of the district judge for an equal distribution. . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 06 August 2022; Ref: scu.159265

In Re Bank of Credit and Commerce International Sa, In Re BCCI (Overseas) Ltd (No 9): ChD 11 Aug 1993

An English Court has the jurisdiction and discretion to apply English insolvency law to a foreign registered company.

Judges:

Rattee J

Citations:

Ind Summary 20-Sep-1993, Times 11-Aug-1993, [1994] 2 BCLC 636

Jurisdiction:

England and Wales

Citing:

Approved – Re Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 06 August 2022; Ref: scu.81734

Smith v Butler and Another: ChD 1 Sep 2011

The parties disputed the control over the company. By failing to attend meetings the claimant had made them inquorate under the articles. The claimant had admitted a cheque fraud on the company some years before, though the amount was disputed. The claimant had been barred from meetings, and he now sought declaratory relief.

Judges:

Behrens J

Citations:

[2011] EWHC 2301 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 06 August 2022; Ref: scu.443588

Hollicourt (Contracts) Ltd (In Liquidation) v Bank of Ireland: ChD 17 Dec 1999

A company’s account was in credit at all times, but was, unknown to the bank, in winding up proceedings. The bank continued to honour cheques, and was found to have been making dispositions of the company’s assets under the section. Accordingly the payments were void and ineffective from the date of the commencement of the winding up.

Citations:

Times 30-Nov-1999, Gazette 17-Dec-1999

Statutes:

Insolvency Act 1986 127

Jurisdiction:

England and Wales

Citing:

Appealed to – Bank of Ireland v Hollicourt (Contracts) Limited CA 20-Oct-2000
A bank continued to pay on cheques presented to it against the company’s bank account even after the presentation of a petition for bankruptcy. The liquidator sought recovery of the amounts paid from the bank as well as the payees. It was held that . .

Cited by:

Appeal from – Bank of Ireland v Hollicourt (Contracts) Limited CA 20-Oct-2000
A bank continued to pay on cheques presented to it against the company’s bank account even after the presentation of a petition for bankruptcy. The liquidator sought recovery of the amounts paid from the bank as well as the payees. It was held that . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, Banking

Updated: 06 August 2022; Ref: scu.81446

In re Islington Metal and Plating Works Ltd: ChD 1983

Section 30 of the 1914 Act provided that ‘demands in the nature of unliquidated damages … shall not be provable in bankruptcy’. Tort claims were therefore excluded as provable debts by the express wording of the Act.

Judges:

Harman J

Citations:

[1984] 1 WLR 14, [1983] 3 All ER 218, [1983] BCLC 215, [1983] Com LR 176

Statutes:

Companies Act 194, Bankruptcy Act 1914 30

Jurisdiction:

England and Wales

Citing:

Disapproved – In Re Berkeley Securities (Property) Ltd ChD 1980
Vinelott J considered the position where tort damages became liquidated by judgment or agreement during the winding-up. He held that in those circumstances the bankruptcy rules imported by section 317 required modification to fit into the scheme of . .

Cited by:

Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 05 August 2022; Ref: scu.641424

Re Warden and Hotchkiss Ltd: CA 1945

Judicial decisions upon which title to property depends or which, by establishing principles of construction or otherwise, form the basis of contracts or which affect the general conduct of affairs so that their alteration would mean, for example, that payments have been needlessly made, ought not to be altered even by the House of Lords, unless the decisions were clearly wrong and productive of inconvenience.

Citations:

[1945] 1 Ch 270

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 05 August 2022; Ref: scu.191968

In re Humber Ironworks and Shipbuilding Co: 1869

The assets of a company held on the statutory trusts should be distributed as if they had all been collected and distributed on the date of the winding up order: ‘I think the tree must lie as it falls; that it must be ascertained what are the debts as they exist at the date of the winding up, and that all dividends in the case of an insolvent estate must be declared in respect of the debts so ascertained. ‘ No allowance is made for interest accruing after the date of the winding up order.
Giffard LJ explained that ‘where the estate is solvent . . , as soon as it is ascertained that there is a surplus, the creditor . . is remitted to his rights under his contract’.

Judges:

Selwyn, Giffard LJJ

Citations:

(1869) LR 4 Ch App 643

Jurisdiction:

England and Wales

Cited by:

Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 03 August 2022; Ref: scu.197911

In re Lines Bros Ltd: CA 1982

The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the Swiss Franc, the creditor bank, on converting their Sterling dividends into Swiss Francs, received only 58.7% of the 18.5 million Swiss Francs owed to them by the company. The bank sought to recover the loss from the surplus after paying all the provable debts. The liquidators applied to the English court for directions.
Held: The bank’s foreign currency debt was properly converted at the date the resolution was passed to wind up the company and they were not entitled to further participate in the assets of the company.
A winding up petition is sui generis, being in the nature of a wider legal proceeding available for the collective enforcement of the admitted or proved debts of the company for the benefit of the general body of creditors on a pari passu basis. The court may incidentally in the course of bankruptcy proceedings have to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these are incidental procedural matters and not central to the purpose of the proceedings.
Brightman LJ said (obiter) that he had ‘not heard any convincing objection’ to the notion that, in a solvent liquidation, the liquidator should ‘make good the shortfall before he pays anything to the shareholders’.

Judges:

Brightman, Lawton and Oliver LJJ LJ

Citations:

[1983] Ch 1, [1982] 2 WLR 1010, [1982] 2 All ER 183

Jurisdiction:

England and Wales

Cited by:

Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 03 August 2022; Ref: scu.197913

Caldwell and Co Ltd v Caldwell: HL 10 Feb 1916

The House of Lords dismissed an appeal from an interlocutor which confirmed a resolution for reduction of the capital of a company proceeding on a statement that capital had been lost, although a reporter to whom the matter had been remitted thought no capital had in fact been lost and no evidence had been taken by the Court, the company having meanwhile again passed a resolution to reduce the capital, and having as required by the Court altered its articles of association to the satisfaction of the reporter with a view to protecting the interests of the dissentient shareholder.

Judges:

Lord Atkinson, Lord Shaw, Lord Parker, and Lord Sumner

Citations:

[1916] UKHL 251, 53 SLR 251

Links:

Bailii

Jurisdiction:

Scotland

Company

Updated: 03 August 2022; Ref: scu.630672

Broadway Approvals Ltd v Odhams Press Ltd (No 2): CA 1965

A company’s mind is not to be assessed on the totality of knowledge of its employees. Malice was not to be established by forensic imagination however eloquently and subtly expressed.
Russell LJ said: ‘the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels.’

Judges:

Sellers, Davies and Russell L.JJ

Citations:

[1965] 1 WLR 805

Jurisdiction:

England and Wales

Citing:

Applied – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .

Cited by:

Cited – Alexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Telnikoff v Matusevitch HL 14-Nov-1991
The court should decide on whether an article is ‘fact or comment’ purely by reference to the article itself, and not taking into account any of the earlier background coverage. It is the obligation of the relevant commentator to make clear that the . .
Cited – Bray v Deutsche Bank Ag QBD 12-Jun-2008
A former employee of the defendant bank sued in defamation after the bank published a press release about its results which he said was critical of him.
Held: Where there is a real issue as to whether the words are defamatory of the claimant, . .
Lists of cited by and citing cases may be incomplete.

Defamation, Damages, Company

Updated: 31 July 2022; Ref: scu.194318

Greenhalgh v Mallard: CA 1943

The court said of certain pre-emption provisions: ‘in the case of the restriction of transfer of shares I think it is right for the court to remember that a share, being personal property, is prima facie transferable, although the conditions of the transfer are to be found in the terms laid down in the articles. If the right of transfer, which is inherent in property of this kind, is to be taken away or cut down, it seems to me that it should be done by language of sufficient clarity to make it apparent that that was the intention.’ As to the application of res judicata: ‘Res judicata for this purpose is not confined to the issues which the court has actually being asked to decide but covers issues or facts which are so clearly part of the subject matter of the litigation, so clearly could have been raised that it would be an abuse of process for the court to allow a new proceeding to be started in respect of them.’

Judges:

Lord Greene MR, Luxmoore, Somervell and Goddard LJJ

Citations:

[1943] 2 All ER 234

Jurisdiction:

England and Wales

Cited by:

Cited – Rose v Lynx Express Ltd. and Bridgepoint Capital (Nominees) Ltd CA 7-Apr-2004
In an request for pre-action discovery it was plainly wrong for the court to seek to decide in advance any element of the virtues of the case.
Held: The appeal should be allowed. The case was arguable and should be allowed to proceed.
Cited – Brisbane City Council v Attorney General for Queensland PC 1978
Lord Wilberforce approved Somervell LJ’s words in Greenhalgh: ‘This is the true basis of the doctrine in Henderson v Henderson and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party . .
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 . .
See Also – Greenhalgh v Mallard CA 1947
Somervell LJ set out the concept of abuse of process in civil cases on a plea of res judicata: ‘res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but . . it covers issues or facts which are so . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 31 July 2022; Ref: scu.196554

Safeguard Industrial Investments Ltd v National Westminster Bank Ltd: CA 1982

The case concerned pre-emption provisions in a company’s Articles, providing that no ordinary share should be transferred to a person who was not a member as long as any member was willing to purchase the same at the fair value and that ‘the proposing transferor’ should serve a transfer notice on the company that he ‘desires’ to transfer the same. The executor of a deceased shareholder brought proceedings for the court to determine whether the executor on the completion of the administration of the estate should serve a transfer notice.
Held: the court was unable to construe the provisions in the Articles in a way which would make a person who involuntarily comes under an obligation to transfer, if called upon, a ‘proposing transferor’.

Judges:

Oliver LJ, Fox and Lawton LJJ

Citations:

[1982] 1 WLR 589

Jurisdiction:

England and Wales

Cited by:

Cited – Rose v Lynx Express Ltd. and Bridgepoint Capital (Nominees) Ltd CA 7-Apr-2004
In an request for pre-action discovery it was plainly wrong for the court to seek to decide in advance any element of the virtues of the case.
Held: The appeal should be allowed. The case was arguable and should be allowed to proceed.
Lists of cited by and citing cases may be incomplete.

Company

Updated: 31 July 2022; Ref: scu.196553

Re VGM Holdings Limited: CA 1942

In response to notorious scandals and great dissatisfaction caused by the speculative activities of asset strippers after the First World War, Parliament had decided to criminalise the giving of financial assistance by a company for the purpose of acquiring its own shares.

Judges:

Lord Greene MR

Citations:

[1942] Ch 235

Statutes:

Companies Act 1929

Jurisdiction:

England and Wales

Cited by:

Cited – MT Realisations Limited (In Liquidation) v Digital Equipment Co Limited CA 10-Apr-2003
The company was insolvent, depending upon loans to it from its parent company. In the liquidation, it was claimed that in a scheme for the acquisition of the shares, the assumption of liability to repay a loan amounted to unlawful financial . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 31 July 2022; Ref: scu.181068

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 sole directors, a property which might have been bought by the company.
Held: The appeal succeeded. Directors of companies occupy a ‘general trusteeship or fiduciary position’, and ‘any inquiry as to whether the company could, would or might have taken up the opportunity itself is irrelevant; so also, therefore, must be a ‘scope of business’ inquiry. The point is that the existence of the opportunity is one that it is relevant for the company to know and of which the director has a duty to inform it. It is not for the director to make his own decision that the company will not be interested and to proceed, without more, to appropriate the opportunity for himself. His duty is one of undivided loyalty and this is one manifestation of how that duty is required to be discharged.’

Judges:

Lord Justice Waller, Lord Justice Rimer and Lord Justice Aikens

Citations:

[2009] EWCA Civ 751, Times 21-Aug-2009

Links:

Bailii

Statutes:

Companies Act 1985 459, Companies Act 2006 994

Jurisdiction:

England and Wales

Citing:

Appeal from – O’Donnell v Shanahan and others; In re Allied Business and Financial Consultants Ltd ChD 7-Aug-2008
. .
Cited – AAS v Benham CA 1891
Benham was a partner in a ship-broking firm which hoped to act in negotiations between the Spanish and Portuguese Governments and ship builders. He had also been approached for advice by a shipbuilding company. He received information while acting . .
Cited – Parker v McKenna CA 1874
The directors of a bank acquired for themselves, and made a profit on, certain shares the subject of a new issue that were not taken up by the bank’s shareholders.
Held: James LJ said: ‘I do not think it is necessary, but it appears to me very . .
Cited – Trimble v Goldberg PC 1906
The parties entered into a partnership to acquire ‘stands of land’ for conversion into a township and subsequent re-sale. The land was acquired, along with shares in a company owning other stands in the same locality. One of the partners then bought . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited – Furs Ltd v Tomkies 1936
(High Court of Australia) ‘the inflexible rule that, except under the authority of a provision in the articles of association, no director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company . .
Cited – Kak Loui Chan v Zacharia 1984
(High Court of Australia) The fundamental rule that obliged fiduciaries to account for personal benefit or gain had two separate themes: ‘The variations between more precise formulations of the principle governing the liability to account are . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – 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 . .
Cited – Bhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 30 July 2022; Ref: scu.352261

Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 8 Mar 2011

The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the applicants to be withheld from public disclosure. The disclosure of their identities would be inconsistent with that order and would undermine the confidentiality which the proceedings were intended to preserve.
The court must have regard not only to the justice of its decision, but also to the justice of the procedures by which it gives it. It therefore had the inherent power, in his opinion, to withhold the identity of a party where, regardless of the outcome of the case, the disclosure of that party’s identity would constitute an injustice to him.

Judges:

Lord Reed

Citations:

[2011] ScotCS CSIH – 18, 2011 GWD 12-272, 2011 SLT 733

Links:

Bailii

Statutes:

Companies Act 2006 899

Jurisdiction:

Scotland

Citing:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 29-Jan-2010
. .
See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .

Cited by:

Cited – A v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Litigation Practice

Updated: 28 July 2022; Ref: scu.430401

Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 29 Jan 2010

Citations:

[2010] ScotCS CSIH – 6, 2010 SLT 459, GWD 7-117, 2010 SCLR 167, 2010 SC 349

Links:

Bailii

Statutes:

Companies Act 2006 896 899

Jurisdiction:

Scotland

Cited by:

See Also – The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 28-Apr-2010
. .
See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 28 July 2022; Ref: scu.396467

The Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others: SCS 28 Apr 2010

Citations:

[2010] ScotCS CSIH – 34

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 29-Jan-2010
. .

Cited by:

See Also – Scottish Lion Insurance Company Ltd v Goodrich Corporation and Others SCS 8-Mar-2011
The object of the proceedings was to protect the confidentiality of documents disclosing certain identities, and an order designed to achieve that objective had previously been made by the court.
Held: The court permitted the identities of the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 28 July 2022; Ref: scu.414912

Bee Tee Alarms, Re: ChD 10 Mar 2006

Citations:

[2006] EWHC 584 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – Re A company, ex parte Kremer 1989
Hoffmann J said: ‘Counsel for the petitioner said the petition made allegations of mismanagement and misappropriation of funds by improper payments against the respondent and that, if these were established at the trial, the court might think it . .
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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 28 July 2022; Ref: scu.263666

In Re Duomatic Ltd: ChD 1969

Payments were made by a company by way of remuneration to directors without complying with the company’s articles of association in that no resolution authorising the directors to receive remuneration had ever been passed in a general meeting of the company or at all.
Held: Where it could be shown that all the shareholders with the right to attend and vote at a general meeting had assented to some matter which a general meeting of the company could carry into effect, such assent was as binding as a resolution in general meeting and that, since in that case the ordinary shareholders, who were the only shareholders with the right to attend and vote at a general meeting had approved the accounts recording the respective payments to the directors, those payments should not be disturbed. A sole beneficial owner of a company’s share capital could override the decisions of the director. He could also do so informally and without passing a special resolution. However the act had to be intra vires the company.
Buckley J said: ‘Mr Wright, for the liquidator, has contended that where there has been no formal meeting of the company and reliance is placed upon the informal consent of the shareholders the cases indicate that it is necessary to establish that all shareholders have consented . . it seems to me that if it had occurred to Mr Elvins and Mr East, at the time when they were considering the accounts, to take the formal step of constituting themselves a general meeting of the company and passing a formal resolution approving the payment of directors’ salaries, that it would have made the position of the directors who received the remuneration, Mr Elvins and Mr Hanley, secure, and nobody could thereafter have disputed their right to retain their remuneration. The fact that they did not take that formal step but that they nevertheless did apply their minds to the question of whether the drawings . . should be approved . . seems to lead to the conclusion that I ought to regard their consent as being tantamount to a resolution of a general meeting of the company. In other words, I proceed upon the basis that where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be.’

Judges:

Buckley J

Citations:

[1969] 2 Ch 365, [1969] 2 WLR 114, [1969] 1 All ER 161

Jurisdiction:

England and Wales

Cited by:

applied – Deakin and Others v Faulding and Others; Specialist Group International Ltd v Deakin and Others; etc ChD 31-Jul-2001
Directors of a company authorised payment of bonuses, but the power to do so lay with the shareholders, not the directors. However, the beneficial owner of a share held for him by a nominee could give assent to a motion of the company at a general . .
Cited – Merer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
Cited – Ultraframe UK Limited v Clayton, Fielding and Others CA 12-Dec-2003
The company was 100% owned by its designer. He purported to retain the design right.
Held: The designer held the rights in trust for the company. An assignment by a shareholder holding all the shares in a company was possible, but not when the . .
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 – Clark v Cutland CA 18-Jun-2003
One director discovered that his co-director had withdrawn substantial sums from the company. . .
Cited – Schofield v Schofield and Others CA 25-Feb-2011
The claimant sought a declaration that he was the sole remaining director of a company, and that the removal of the defendant, his son, had been successful. The meeting at which the decision had been taken, had not been taken with the full notice . .
Cited – Speechley and Others v Allott and Others CA 10-Mar-2014
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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 28 July 2022; Ref: scu.183372

Butler v Board of Trade: ChD 1970

Goff J discussed the criterion for admissibility of evidence:’If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a prima facie case that the communications in question were made in preparation for or in furtherance or as part of it.’

Judges:

Goff J

Citations:

[1970] 3 All ER 593, [1970] 3 WLR 822, [1971] Ch 680

Statutes:

Companies Act 1948 332(3)

Jurisdiction:

England and Wales

Cited by:

Cited – In Re Smith Kline and French Laboratories Ltd HL 9-Feb-1989
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Considered – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Lists of cited by and citing cases may be incomplete.

Company, Crime

Updated: 28 July 2022; Ref: scu.183218

Costello and Another v MacDonald and Others: CA 29 Jul 2011

The provision of services to a company was held not to enrich its directors and shareholders.
In unjust enrichment, a claim for restitution will fail if it undermines the contractual arrangements between the parties. Etherton LJ said: ‘The general rule should be to uphold contractual arrangements by which parties have defined and allocated and, to that extent, restricted their mutual obligations, and, in so doing, have similarly allocated and circumscribed the consequences of non-performance. That general rule reflects a sound legal policy which acknowledges the parties’ autonomy to configure the legal relations between them and provides certainty, and so limits disputes and litigation. The following cases support its application to the present case.’

Judges:

Pill, Etherton, Patten LJJ

Citations:

[2011] EWCA Civ 930, [2011] CILL 3081, [2012] 1 All ER (Comm) 357, [2011] BLR 544, [2011] 47 EG 106, [2012] QB 244, 137 Con LR 55, [2011] 3 EGLR 87, [2011] 3 WLR 1341

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Company

Updated: 26 July 2022; Ref: scu.442526

Smith v Henniker-Major and Co: ChD 17 Oct 2001

Judges:

Rimer J

Citations:

[2001] EWHC 484 (Ch), [2002] BCC 544

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Smith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 26 July 2022; Ref: scu.346884

Lovett and Another v Carson Country Homes Ltd and Others: ChD 1 May 2009

The applicant said that a signature on a debenture purporting to be his was a forgery. It was argued that the section was capable of validating the signature even if it was a forgery.
Held: The appointment of the administrators under the deed was effective. The applicant had not signed the deed. He had however allowed previous documents to be signed by his partner in his name where he knew of the transaction. In this case he did not. The Act however protected a ‘purchaser’ where it purported to be properly signed, as this document had. The bank was a ‘puchaser’ within section 44(5). ‘Purports’ in subsection (5) ‘operates to refer to the impression a document conveys’ focusing on what appears to be the case rather than what actually is the case.

Judges:

Davis J

Citations:

[2009] EWHC 1143 (Ch), [2009] BCLC 196

Links:

Bailii

Statutes:

Companies Act 2006 44

Jurisdiction:

England and Wales

Cited by:

Cited – Williams and Others v Redcard Ltd and Others CA 20-Apr-2011
The parties disputed whether the defendant company had effectively executed a contract for the sale of land. Two authorised signatories of the company had signed it, but there was no wording to attribute their acts to the company.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 26 July 2022; Ref: scu.346318

Midill (97Pl) Ltd v Park Lane Estates Ltd and Another: ChD 16 Jan 2008

Was the vendor of shares in a company owning a single property, who had served notice to complete on the purchaser, itself ready, able and willing to complete?

Judges:

His Honour Judge Mackie QC

Citations:

[2008] EWHC 18 (Ch), [2008] 3 EG 178, [2008] 1 P and CR DG18

Links:

Bailii

Statutes:

Law of Property Act 1925 49(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 26 July 2022; Ref: scu.263647

Re Walter L Jacob Ltd: CA 1989

Having authorised an enquiry under section 447, the Secretary of State presented a winding-up petition of the respondent, an authorised dealer in securities. The company had been obliged to cease trade by its regulatory body. The judge held that the public interest did not require the company to be wound up as it had ceased to trade anyway.
Held: The judge had erred. There was a balancing exercise. If the company had still been dealing in securities, it would be just and equitable that it should be wound up. Did the fact that the company ceased to carry on that business immediately before the petition was presented make a crucial difference? It did not.
Nicholls LJ said: ‘In considering whether or not to make a winding-up order under sec. 122(1)(g), the court has regard to all the circumstances of the case as established by the material before the court at the hearing. Normally that will involve the court, faced with a petition presented by a creditor or a contributory, considering primarily the conflicting interests and wishes of the opposing parties to the petition, whether creditors or contributories or the company itself. The court will consider those matters which constitute reasons why the company should be wound up compulsorily, and those which constitute reasons why it should not. The court will carry out a balancing exercise, giving such weight to the various factors as is appropriate in the particular case. In principle the exercise to be carried out where the petitioner is the Secretary of State is the same. The only difference lies in the nature of the reasons being put forward by the petitioner for the making of a compulsory winding-up order.’
Nichols LJ discussed the position in public interest winding up petitions: ‘The court’s task, in the case of so called ‘public interest’ petitions, as in the case of all other petitions invoking the courts winding up jurisdiction under section 122(1)(g), is to carry out the balancing exercise described above, having regard to all the circumstances as disclosed by the totality of the evidence before the court. In respect of all such petitions, whoever may be the petitioner, the court has to weigh the factors which point to the conclusion that it would be just and equitable to wind up the company against those which point to the opposite conclusion. It is to the court that Parliament has entrusted this task in all cases. Thus where the reasons put forward by the petitioner are founded on considerations of public interest, the court, if it is to discharge its obligation to carry out the balancing exercise, must itself evaluate those reasons to the extent necessary for it to form a view on whether they do afford sufficient reason for making a winding up order in the particular case.
In the case of ‘public interest’ petitions, the court will, of course, carry out that evaluation with the assistance of evidence and submissions from the Secretary of State and from other parties. When doing so the court will take note that the source of the submissions that the company should be wound up is a government department charged by Parliament with wide ranging responsibilities in relation to the affairs of companies. The department has considerable expertise in these matters and can be expected to act with the proper sense of responsibility when seeking a winding up order. But the cogency of the submissions made on behalf of the Secretary of State will fall to be considered and tested in the same way as any other submissions. His submissions are not ipso facto endowed with such weight that those resisting a winding up petition presented by him will find the scales loaded against them.’

Judges:

Nicholls LJ

Citations:

[1989] 5 BCC 244, [1989] BCLC 345

Statutes:

Coompanies Act 1985 122(1)(g) 447

Jurisdiction:

England and Wales

Cited by:

Cited – In the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986 ChD 19-Mar-2004
The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but . .
Cited – Rodencroft Limited, W. G. Birch Developments Limited, H-M Birch Limited; Simon Allso v The Secretary for State for Trade and Industry ChD 23-Apr-2004
The Secretary of state sought the winding up of the companies saying it was expedient in the public interest to do so. A shareholder opposed this saying that the companies were solvent.
Held: The shareholder had, in the absence of any position . .
Cited – Secretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 July 2022; Ref: scu.196719

Re International Tin Council: CA 1989

Creditors sought to treat the International Tin Council as an ‘association’ for the purposes of a provision under the Companies Act 1985 allowing for unregistered companies to be wound up.
Held: The decision in Re a Company was binding. The presentation of a petition based upon an arbitration award was not enforcement of the award. The Court identified a range of reasons for excluding it from the scope of entities to which the relevant provision would apply.

Judges:

Nourse LJ

Citations:

[1989] Ch 309, [1988] 3 WLR 1159

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Appeal from – Re International Tin Council ChD 1987
An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J . .
See Also – Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .

Cited by:

Cited – Hackney v Side By Side (Kids) Ltd QBD 14-Jul-2003
The defendant sought a stay of a warrant for possession. It had submitted to an order for possession by consent in return for a promise of alternative accomodation. They sought a stay under section 89, saying that the claimant had not complied with . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 26 July 2022; Ref: scu.185747

Syers v Syers: HL 1876

The court has power to ascertain the value of a former partner’s interest without a sale if it can be done by valuation, and will do so where that interest is relatively small.

Citations:

(1876) 1 App Cas 174

Jurisdiction:

England and Wales

Cited by:

Cited – Mullins v Laughton and Others ChD 19-Dec-2002
The claimant asserted that his partners had repudiated the partnership by their conduct toward him. He continued that he had accepted the repudiation, and that therefore the partnership was dissolved.
Held: The Hurst case had been on the basis . .
Cited – CVC/Opportunity Equity Partners Limited and Opportunity Invest II Limited v Luis Roberto Demarco Almeida PC 21-Mar-2002
(Cayman Islands) The respondent was a minority shareholder. An offer was made to buy out his interest. He petitioned for the winding up of the company on the just and equitable ground. The claimants obtained an injunction to prevent him doing so, . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 July 2022; Ref: scu.180522

QEB Metallics Ltd v Peerzada and Others: ChD 22 Dec 2009

Action against three defendants allegedly involved in a scheme to defraud Her Majesty’s Revenue and Customs of some andpound;2,141,510.80 by way of a VAT fraud. The claimant is a company, QEB Metallics Ltd (‘QEB’), said to be the central vehicle for the fraud. The company’s liquidators sought recovery from directors.

Judges:

Judge Kaye QC

Citations:

[2009] EWHC 3348 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Torts – Other

Updated: 25 July 2022; Ref: scu.401901

In Re Surrey Leisure Ltd: ChD 25 Jan 1999

In company director disqualification proceedings the person applying for the order could nominate more than one lead company in the proceedings, but he did not have a duty to name all the lead companies.

Citations:

Times 25-Jan-1999, Gazette 10-Feb-1999

Statutes:

Company Directors Disqualification Act 1986 16(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – In Re Surrey Leisure Ltd; Official Receiver v Keam and Another CA 28-Jul-1999
An applicant for a company director disqualification order was permitted to name more than one company as the lead company in its application. The Interpretation Act operated to resolve any ambiguity or lack of clarity in favour of an interpretation . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 July 2022; Ref: scu.82209

Painter v Hutchison and Another: ChD 3 Apr 2007

The court was asked whether the illegal intention behind the execution of a declaration of trust had been carried into effect to the extent that it prevented P from asserting that a declaration of trust in relation to a property was a sham and that she was in fact the beneficial owner of the property.
Held: Although both P and her husband had said that the reason behind the execution of the trust was to distance the property from the Inland Revenue, that had not actually happened. Amongst other things, the declaration of trust was never shown to the Inland Revenue and P had declared the property to them as her asset. She was not prevented from asserting that the property was hers.

Judges:

Lewison J

Citations:

[2007] EWHC 758 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
Lists of cited by and citing cases may be incomplete.

Company, Land, Trusts

Updated: 25 July 2022; Ref: scu.250707

In re Ocean Steam Navigation Company Limited: ChD 1939

A petition was presented for the re-organisation of the company in circumstances in which, though it was was wholly insolvent, proposed a transfer of its entire undertaking to a new company, the shares in the new company being allotted to the creditors of the old. No shareholder in the old company was to take shares (or indeed any other interest) under the scheme. Part of the dispute was whether or not shareholders should have been offered something or whether their position could be ignored because they had no interest in the company.
Held: The scheme was not unfair on the shareholders, but in the circumstances it was ultra vires.

Judges:

Simonds J

Citations:

[1939] 1 Ch 4

Jurisdiction:

England and Wales

Cited by:

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

Company

Updated: 25 July 2022; Ref: scu.220254

In Re Neptune (Vehicle Washing Equipment) Ltd: Neptune (Vehicle Washing Equipment) Ltd v Fitzgerald: ChD 2 Mar 1995

A sole company director must still have company meetings before entering into a contract even if only he will be present. When a director’s claim to the validity of a contract or arrangement depends upon his disclosure of it at a meeting, he must show that he has in letter and spirit complied with the section and any article to like effect.

Citations:

Times 02-Mar-1995, Ind Summary 13-Mar-1995, [1995] 1 BCLC 352, [1996] Ch 274

Statutes:

Companies Act 1985 317

Jurisdiction:

England and Wales

Cited by:

Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – 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

Updated: 25 July 2022; Ref: scu.82071

In Re Norditrack (UK) Ltd: ChD 11 Nov 1999

A voluntary winding up is deemed to take place when the resolution for it was passed. The practice of passing such a resolution to take effect only upon the revocation of an administration order was ineffective. The correct way was for an order regarding the administration to be made but held pending notification of the passing of the resolution by the company.

Judges:

Arden J

Citations:

Times 11-Nov-1999

Statutes:

Insolvency Act 1986 86

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 25 July 2022; Ref: scu.82073

Itochu v Commission (Competition): ECFI 30 Apr 2009

ECJ Competition Agreements, decisions and concerted practices – Market for video games consoles and games cartridges compatible with Nintendo games consoles – Decision finding an infringement of Article 81 EC – Limitation of parallel exports Attributability of the infringement – Fines – Differential treatment – Deterrent effect – Duration of the infringement – Attenuating circumstances Cooperation during the administrative procedure.
The court discussed the nature of an entity within European law.
Held: The fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of its conduct being imputed to the parent company, especially where the subsidiary does not independently determine its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company . . In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement, the Court of Justice stated in Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 50, that it was not necessary to ascertain whether that company had in actual fact influenced the commercial policy of its subsidiary, in so far as that subsidiary necessarily follows the policy laid down by the same bodies as, under its statutes, determine the parent company’s policy. In such a case, there is a simple presumption that the parent company exercises decisive influence over the conduct of its subsidiary. It is thus for a parent company which disputes before the Community judicature a Commission decision fining it for the conduct of its subsidiary to rebut that presumption by adducing evidence to establish that its subsidiary was independent . . That being so, it is sufficient for the Commission to show that the entire capital of a subsidiary is held by the parent company in order to conclude that the parent company exercises decisive influence over its commercial policy. The Commission will then be able to hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary, unless the parent company proves that the subsidiary does not, in essence, comply with the instructions which it issues and, as a consequence, acts autonomously on the market.’

Citations:

T-12/03, [2009] EUECJ T-12/03

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Crest Nicholson Plc v Office of Fair Trading Admn 24-Jul-2009
The company challenged as unfair its treatment by the respondent in imposing fines for anti-competive behaviour. The claimant was successor of the company who had misbehaved, but the claimant no longer operated in the area and had no employees from . .
Lists of cited by and citing cases may be incomplete.

Commercial, Company

Updated: 24 July 2022; Ref: scu.342034