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:

CitedRose 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.
CitedBrisbane 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 . .
CitedJohnson 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 AlsoGreenhalgh 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