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Company - From: 1990 To: 1990

This page lists 19 cases, and was prepared on 02 April 2018.

 
Agip (Africa) Ltd v Jackson [1990] 1 Ch 265; [1991] 3 WLR 11
1990
ChD
Millett J
Company, Banking
The reference to "any wrongful act or omission" in section 10 is not limited to torts or even to wrongs which were actionable at common law. "In paying or collecting money for a customer the bank acts only as his agent. It is otherwise, however, if the collecting bank uses the money to reduce or discharge the customer's overdraft. In doing so, it receives the money for its own benefit." Secrecy is a badge of fraud.
Partnership Act 1890 10
1 Citers



 
 In re Sevenoaks Stationers (Retail) Ltd; CA 1990 - [1991] Ch 166; [1990] BCC 765
 
Re Jaymar Management Ltd [1990] BCC 303
1990
ChD
Harman J
Company
The 10 day notice period before commencing proceedings had to be calculated exclusive of the day on which the notice was given and the day on which the proceedings were issued.
Company Directors Disqualification Act 1986 16(1)
1 Citers



 
 Re Abbey Leisure; CA 1990 - [1990] BCLC 342 CA; [1990] BCC 60
 
Balston Ltd v Headline Filters Ltd and Another [1990] FSR 385
1990
ChD
Falconer J
Employment, Company
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which the company had informed them of an impending price increase and that supplies would be discontinued. The defendant told the customer that he was leaving, and said he would be able to supply them himself. He began to prepare his business, buying in stock and taking on former and current employees of the claimant. The claimant now alleged breach of his fiduciary duties as director, of acting in conflict of interest, and of his duties of faithfulness as an employee. Held: The mere intention to set up a competing business whilst employed as a director was not a breach of fiduciary duty, and nor did he have a duty to disclose that intention. Though general preparation were not a breach of his duty of fidelity as an employee, the taking of an order from a customer, and the taking on of an employee did each amount to such a breach.
There was no misues of confidential information. Although the new business used similar fibre mixes, the defendant's own skill could account for his preparation of them without misuse of the claimant's confidential information.
Falconer J said: "In my judgment an intention by a director of a company to set up business in competition with the company after his directorship has ceased is not to be regarded as a conflicting interest within the context of the principle, having regard to the rules of public policy as to restraint of trade, nor is the taking of preliminary steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he remains a director."
1 Cites

1 Citers


 
Re Curtain Dream plc [1990] BCLC 925
1990

Knox J
Equity, Land, Company
The company sought to finance its stock. It first sold it to a finance company, then repurchased it on terms including a retention of title clause. Held: The whole transaction was, in its nature, a charge on the company's assets, and as such was registerable as a company charge.
1 Citers


 
Re Sam Weller and Sons Ltd [1990] Ch 682
1990


Company

Companies Act 1985 459
1 Citers


 
Attorney-General for Tuvalu v Philatelic Distribution Corporation Ltd [1990] 1 WLR 926
1990
CA
Woolf LJ
Contempt of Court, Company
Where a company is ordered not to do certain acts or gives an undertaking to the like effect and a director of that company is aware of the order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and that if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. It is his own culpable conduct which exposes him to that liability.
Woolf LJ said: "In our view where a company is ordered not to do certain acts or gives an undertaking to like effect and a director of that company is aware of that order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. We use the word "wilful" to distinguish the situation where the director can reasonably believe some other director or officer is taking those steps."
1 Citers


 
Byng v London Life Association [1990] 1 Ch 170
1990
CA
Browne-Wilkinson V-C, Mustill, Woolf LJJ
Company
The venue selected for a meeting of the members of a company was too small to accommodate all the members who attended, and so the chairman adjourned the meeting to an alternative venue. Held. The decision by the chairman was set aside on the ground that, although acting good faith, he had failed to take into account relevant factors in the exercise of a discretion as chairman. The initial assembly of members was a meeting for the purposes of the Companies Act and the company's articles of association, even though no business could be transacted because the members could not be adequately accommodated. The chairman had adjourned the meeting to a larger venue later in the day, without the consent or direction of those present. He had a residual common law power of adjournment, arising out of his duty to regulate proceedings so as to enable those attending to be heard and to vote. That power was not removed or restricted by the provision of the company's articles, in circumstances where it was not possible to discover whether the meeting would agree to an adjournment and an urgent decision was needed.
1 Citers


 
Re Charnley Davies Ltd (No 2) [1990] BCLC 760
1990
ChD
Millett J
Negligence, Company, Insolvency
An administrator owed a duty to the company over which he was appointed to take reasonable care to obtain the best price that the circumstances, as he reasonably perceived them to be, permitted, including a duty to take reasonable care in choosing the time at which to sell the property. A mortgagee is bound to have regard to the interests of the mortgagor, but he is entitled to give priority to his own interests, and may insist on an immediate sale whether or not that is calculated to realise the best price. An administrator, by contrast, like a liquidator, has no interest of his own to which he may give priority, and must take reasonable care in choosing the time at which to sell the property.
Millett J said: "An allegation that the acts complained of are unlawful or infringe the petitioner's legal rights is not a necessary averment in a s.27 petition. In my judgment it is not a sufficient averment either. The petitioner must allege and prove that they are evidence or instances of the management of the company's affairs by the administrator in a manner which is unfairly prejudicial to the petitioner's interests. Unlawful conduct may be relied on for this purpose, and its unlawfulness may have a significant probative value, but it is not the essential factor on which the petitioner's cause of action depends.
Counsel for the petitioners asked: 'If misconduct in the management of the company's affairs does not without more constitute unfairly prejudicial management, what extra ingredient is required?' In my judgment the distinction between misconduct and unfairly prejudicial management does not lie in the particular acts or omissions of which complaint is made, but in the nature of the complaint and the remedy necessary to meet it. It is a matter of perspective. The metaphor is not a supermarket trolley but a hologram. If the whole gist of the complaint lies in the unlawfulness of the acts or omissions complained of, so that it may be adequately redressed by the remedy provided by law for the wrong, the complaint is one of misconduct simpliciter. There is no need to assume the burden of alleging and proving that the acts or omissions complained of evidence or constitute unfairly prejudicial management of the company's affairs. It is otherwise if the unlawfulness of the acts or omissions complained of is not the whole gist of the complaint, so that it would not be adequately redressed by the remedy provided by law for the wrong. In such a case it is necessary to assume that burden, but it is no longer necessary to establish that the acts or omissions in question were unlawful, and a much wider remedy may be sought.
A good illustration of the distinction is provided by Re a company (No 005287 of 1985) [1986] BCLC 68. In that case the petitioners, who were minority shareholders, alleged that the respondent, who was the majority shareholder, had disposed of the company's assets in breach of his fiduciary duty to the company and in a manner which was unfairly prejudicial to the interests of the petitioner. Hoffmann J refused to strike out the petition, holding that the fact that the petitioners could have brought a derivative action did not prevent them seeking relief under s 459.
Again, I respectfully agree. The very same facts may well found either a derivative action or a s 459 petition. But that should not disguise the fact that the nature of the complaint and the appropriate relief is different in the two cases. Had the petitioners' true complaint been of the unlawfulness of the respondent's conduct, so that it would be met by an order for restitution, then a derivative action would have been appropriate and a s 459 petition would not. But that was not the true nature of the petitioners' complaint. They did not rely on the unlawfulness of the respondent's conduct to found their cause of action; and they would not have been content with an order that the respondent make restitution to the company. They relied on the respondent's unlawful conduct as evidence of the manner in which he had conducted the company's affairs for his own benefit and in disregard of their interests as minority shareholders; and they wanted to be bought out. They wanted relief from mismanagement, not a remedy for misconduct.
When the petitioners launched the present proceedings, they wrongly believed that Mr Richmond was managing the affairs of the company in a manner which disregarded their interests and those of the creditors generally. That was a perfectly proper complaint to bring under s 27. Long before the case came to trial, however, it had become a simple action for professional negligence and nothing more. That, if established, would amount to misconduct; but it would neither constitute nor evidence unfairly prejudicial management. In my judgment it would be a misuse of language to describe an administrator who has managed the company's affairs fairly and impartially and with a proper regard for the interests of all the creditors (and members where necessary), conscientiously endeavouring to do his best for them, but who has through oversight or inadvertence fallen below the standards of a reasonably competent insolvency practitioner in the carrying out of some particular transaction, as having managed the affairs of the company in a manner which is unfairly prejudicial to the creditors."
Companies Act 1985 459
1 Cites

1 Citers



 
 Adams v Cape Industries plc; CA 2-Jan-1990 - [1990] Ch 433; [1991] 1 All ER 929; [1990] 2 WLR 657; [1990] BCLC 479; [1990] BCC 786
 
Criminal proceedings against Blanguernon (Rec 1990,p I-83) (Judgment) C-38/89; [1990] EUECJ C-38/89
11 Jan 1990
ECJ

Company
Company law - Implementation of directives - Condition of reciprocity.
[ Bailii ]
 
Guinness plc v Saunders [1990] 2 AC 663; [1989] UKHL 2
8 Feb 1990
HL
Lord Templeman, Lord Goff
Company
A committee of the board of Guinness had authorised payment of remuneration to Mr Ward, who was a director. However, the articles of association did not give authority to a committee of the board (as opposed to the full board) to authorise such a payment. Mr Ward attempted to rely on section 727. Held: The claim failed: "Mr. Ward had no right to remuneration without the authority of the board. Thus the claim by Guinness for repayment is unanswerable. If Mr. Ward acted honestly and reasonably and ought fairly to be excused for receiving £5.2m. without the authority of the board, he cannot be excused from paying it back. By invoking section 727 as a defence to the claim by Guinness for repayment, Mr. Ward seeks an order of the court which would entitle him to remuneration without the authority of the board." (Lord Templeman)
Companies Act 1985 727
1 Cites

1 Citers

[ Bailii ]

 
 Caparo Industries Plc v Dickman and others; HL 8-Feb-1990 - [1990] 2 AC 605; [1990] UKHL 2; [1990] 1 All ER 568
 
Rush Portuguesa Ld v Office National d'immigration C-113/89; [1990] EUECJ C-113/89; [1990] ECR I-3905; [1991] 2 CMLR 818; [1990] ECR 1-1417
27 Mar 1990
ECJ

Company
ECJ Articles 59 and 60 of the EEC Treaty and Articles 215 and 216 of the Act of Accession of Portugal must be interpreted as meaning that an undertaking established in Portugal providing services in the construction and public works sector in another Member State may move with its labour force which it brings from Portugal for the duration of the works in question . In such a case, the authorities of the Member State in whose territory the works are to be carried out may not impose on the supplier of services conditions relating to the recruitment of manpower in situ or the obtaining of work permits for the Portuguese work-force . However, those authorities may check whether an undertaking is not circumventing the provisions of Article 216 of the Act of Accession under the cloak of a provision of services .
1 Citers

[ Bailii ]
 
Dubai Bank Ltd v Galadari and Others (No 5) Times, 25 June 1990
25 Jun 1990


Company, International
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated.
1 Cites

1 Citers


 
Foster and others v British Gas plc [1991] 2 WLR 258; [1990] 2 CMLR 833; 2 CMLR 833 ECJ; C-188/89; [1990] ECR I-3313; [1990] EUECJ C-188/89; [1990] IRLR 353; [1990] 3 All ER 897; [1991] 1 QB 405; [1991] ICR 84
12 Jul 1990
ECJ
Sir Gordon Slynn, P
European, Utilities, Employment, Company
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. The statutory objective set was the development and maintenance of an efficient, co-ordinated and economical supply of gas for Great Britain. In conjunction with the Secretary of State it was to settle a research programme into matters which affected the supply of gas. Additionally, the Secretary of State had power to require BGC to report to him and comply with any directions he might give. The court asked whether British Gas was part of the State before it was privatised? Held:
  • [A Directive] may be relied upon in a claim for damages against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals
  • ECJ has jurisdiction in proceedings for a preliminary ruling to determine the categories of person against whom the provisions of a directive may be relied on. It is for the national courts . . to decide whether a party to proceedings before them falls within one of the categories so defined.
  • must provide a public service pursuant to a measure adopted by the State
  • must be a public service under the control of the State
  • must have for that purpose special powers beyond those which result from the normal rules applicable in relation to individuals All criteria were satisfied in this case. All criteria were important.
    The HL had held the British Gas Corporation (before privatisation) met the criteria of the ECJ for defining an emanation of state and that British Gas was bound by vertical direct effect.
    It had been held in a series of cases that provisions of a European directive could be relied on against organisations and bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals. Reference was made to a number of its decisions to illustrate this point. Held: "It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon."
    ECJ 1. Unconditional and sufficiently precise provisions of a directive may be relied upon against organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable in relations between individuals. They may in any event be relied upon against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.
    2. Article 5(1 ) of Directive 76/207 on equal treatment for men and women as regards access to employment and working conditions is a provision which is unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts.
    Directive 1976 EEC/76/207 5(1)
    1 Citers

    [ Bailii ]
     
    AIB Capital Markets Plc and Another v Atlantic Computer Systems Plc and others; in re Atlantic Computers [1990] EWCA Civ 20; [1992] Ch 505; [1990] BCC 859; [1992] 2 WLR 367
    25 Jul 1990
    CA
    Neill, Staughton, Nicholls LJJ
    Insolvency, Company
    The court was asked how the administrators should deal with third parties seeking to exercise existing proprietary rights (including security rights) against the company in administration, and gave guidance. Nicholls LJ noted that in some cases there would be a dispute over the existence, validity or nature of the security which the third party was seeking to enforce. In that context, it was not for the court (on the application for permission to lift the moratorium) to seek to adjudicate upon that issue "unless . . the issue raises a short point of law". Otherwise (i.e. wherever the issue about the validity or nature of the security did not raise a short point of law) the Court would need to be satisfied only that the applicant for permission to enforce the proprietary right had a seriously arguable case.
    1 Citers

    [ Bailii ]

     
     Marleasing SA v La Comercial Internacional de Alimentacion SA; ECJ 13-Nov-1990 - (1992) 1 CMLR 305; C-106/89; [1990] ECR I-4135; [1990] EUECJ C-106/89; [1990] 1 ECR 3313
     
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