swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Company - From: 1994 To: 1994
This page lists 39 cases, and was prepared on 02 April 2018.
In re Polly Peck International plc, Ex parte the joint administrators [1994] BCC 15
1994
ChD
Vinelott J
Insolvency, Company
The purposes of a liquidation, or administration or receivership of a company must include the gathering of information as to the conduct of the affairs of the company, and those who had conducted them so that the office-holder can report to the Secretary of State as he is required to do by section 7(3) of the Disqualification Act: "it is quite clear that the purposes of the administration must include the gathering of information as to the conduct of the affairs of the company and those responsible for it by an administrator in order that he can report to the Secretary of State as he is required to do. He must do so in order that the Secretary of State can perform his duty, which is the important one of taking proceedings if it appears that a disqualification order should be made."
Company Directors' Disqualification Act 1986 7(3) - Insolvency Act 1986
1 Citers
Re Circle Holidays International plc [1994] BCC 226
1994
ChD
HH Judge Micklem
Company
The affidavit filed in proceedings under the Act take a role similar to that of the pleadings in other cases.
Company Directors Disqualification Act 1986
1 Citers
Re Unisoft Group Limited (No 3) [1994] 1 BCLC 609
1994
ChD
Harman J
Company
When considering applications to strike out parts of pleadings in a s459 application, the courts had to recognise the need to be careful not to allow the parties to trawl through irrelevant grievances. B The statutory definition of "shadow director" is that he is a person on whose instructions or directions "the directors of the company" are accustomed to act: "In my view, there can be no way in which the acts of any one of several directors of a company in complying with the directions of an outsider could constitute that outsider a shadow director of that company. Of course, if the board of the company be one person only and that person is a 'cat's paw' for an outsider, the outsider may be the shadow director of that company. But in a case such as this, with a multi-member board, unless the whole of the board, or at the very least a governing majority of it - in my belief the whole, but I need not exclude a governing majority - are accustomed to act on the directions of an outsider, such an outsider cannot be a shadow director." and "[The directors] must be people who act on the directions or instructions of the shadow director as a matter of regular practice. That last requirement follows from the reference in the subsection to the directors being 'accustomed to act'. That must refer to acts not on one individual occasion but over a period of time and as a regular course of conduct."
Companies Act 1985 459 741(2)
1 Citers
In re Saul Harrison and Sons PLC [1994] BCC 475
1994
CA
Company
The plaintiffs claimed that the directors had either exceeded their powers or had exercised their powers for some illegitimate or ulterior purpose. Held: Where the claim of unfairness was not reasonably arguable, the court could exercise its jurisdiction to strike out a petition presented under section 459. Having observed that petitions under section 459 are "notoriously burdensome" and can themselves be used as a means of oppression, the court scrutinised the allegations of unfairness with care to see if an arguable case could be made out. The claim for relief stood or fell by whether allegations of bad faith by the directors could be made out. It concluded that they were unarguable.
Companies Act 1985 459 461
1 Citers
Olson v Gullo (1994) 17 OR (3d) 790
1994
Morden ACJO
Commonwealth, Company, Agency
(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial judge held that Mr Olson was entitled to recover the whole of the profit. Held: The appeal was allowed.
Morden ACJO said that he had "concluded . . that it was contrary to principle and authority . . to deprive the defendants of their one-half share in the transaction in question". He explained: "We must, however, begin our consideration with the basic premise that the profit in question is the property of the partnership, not of all the partners except the defaulting partner. To exclude the wrongdoer would be to effect a forfeiture of his or her interest in this partnership property. The point may be understood by considering a starker form of wrongdoing - a case where a partner misappropriates partnership funds for his own benefit. In such a case I am not aware of any principle or decision to the effect that not only must the partner account to the partnership for the money but must also suffer a forfeiture of his or her interest in it. In fact, the case law of which I am aware is to the contrary."
1 Citers
Re Hydrodam (Corby) Ltd [1994] BCC 161
1994
Millett J
Company
Millett J described a de facto director as: "a person who assumes to act as a director. He is held out as a director by the company, claims and purports to be a director, although never actually or validly appointed as such. To establish that a person was a de facto director of a company it is necessary to plead and prove that he undertook functions in relation to the company which could probably be discharged only by a director. It is not sufficient to show that he was concerned in the management of a company's affairs or undertook tasks in relation to its business which can probably be performed by a manager below board level."
1 Citers
Fulham Football Club Ltd v Cabra Estates plc [1994] 1 BCLC 363
1994
CA
Neil LJ
Company, Contempt of Court
Fulham, as lessees of Craven Cottage, agreed with CABRA, a developer, who had applied for planning permission to redevelop the ground, shortly before a public inquiry which had been set up to consider the planning application; and also a proposal by the local authority (which Fulham FC had supported) for the making of a compulsory purchase order of the ground. Fulham were to receive payment from CABRA in return not providing witnesses or written material in support of the CPO. If called upon to do so, they were to write in support of the planning application. Held: Directors of a company may have power make a contract which fetters their discretion in any event. Neil LJ said: "It is trite law that directors are under a duty to act bona fide in the interests of their company. However, it does not follow from that proposition that directors can never make a contract by which they bind themselves to the future exercise of their powers in a particular manner, even though the contract taken as a whole is manifestly for the benefit of the company. Such a rule could well prevent companies from entering into contracts which were commercially beneficial to them."
"The principle which underlies both the law of contempt of court and the rules governing the immunity of witnesses from suit, however, is that, as a matter of public policy, the court will prevent and, if necessary punish, conduct which interferes with the proper administration of justice. Thus, "any contract which has a tendency to affect the due administration of justice is contrary to public policy": see Halsbury's Laws of England. In any individual case therefore the question is: has the act impugned interfered with, or will it interfere with, the due administration of justice? It is not sufficient merely to pose the question: is the effect of the agreement that a party or a witness may be prevented from putting forward a particular contention in court or before a tribunal? It is necessary to take a broad view of the public interest and, where necessary, seek to achieve a balance between countervailing public policy considerations. Thus in the present case there is the public interest in allowing business to be transacted freely and in holding commercial men to their bargains.
There are many circumstances where parties can properly and legally reach agreements as to the future course of legal proceedings. The law favours rather than disapproves of the compromise of a civil action, and the court will intervene to prevent a party pursuing a legal remedy in breach of a valid compromise. . .
The court will consider the facts of each case. But where, as here, a commercial agreement relating to land has been entered into between parties as arm's, length and one party agrees in return for a very substantial payment to support the other party's applications for planning permission we can see no rule of public policy which renders such an agreement illegal or unenforceable. This does not mean of course that a witness could be prevented by agreement from giving evidence on subpoena, because this could involve an interference with the course of justice. But we are satisfied that on the facts of this case the covenantors cannot rely on any rule of public policy which would enable them to ignore the provisions in . . the letter of undertaking and to volunteer to oppose [Cabra's] application. Nor can we find any ground of public policy which could be invoked to prevent the first plaintiffs and the club writing a letter to the Secretary of State and the planning authority in strict accordance with . . the letter of undertaking stating that "the Companies" support the planning application and are in favour of it being granted. We see no objection to the inclusion of a sentence in the letter to the effect that it is written in accordance with the letter of undertaking."
1 Cites
1 Citers
In re Hydrodam (Corby) Limited; ChD 1994 - [1994] 2 BCLC 180
National Westminster Bank Plc and Another v Inland Revenue Commissioners; CA 10-Jan-1994 - Gazette, 16 March 1994; Times, 10 January 1994; Ind Summary, 24 January 1994
Re Seagull Manufacturing Co Ltd (In Liquidation) (No 2) Gazette, 12 January 1994
12 Jan 1994
ChD
Company
A director resident abroad is still subject to UK jurisdiction.
1 Cites
In Re New Bullas Trading Ltd Times, 12 January 1994; Ind Summary, 17 January 1994; [1994] 1 BCLC 449
12 Jan 1994
CA
Nourse LJ, Russell LJ and Scott Baker J
Company, Banking, Insolvency
A company debenture, which purported to create a fixed charge on book debts, and a second floating charge over the proceeds when paid, was valid and effective to create a fixed charge. The chargee was not a bank, and therefore no facility could be provided for payment of book debts. However "Just as it is open to contracting parties to provide for a fixed charge on future book debts, so it is open to them to provide that they shall be subject to a fixed charge while they are uncollected and a floating charge on realisation. No authority to the contrary has been cited and, the principle being as spacious as it has been expressed to be, no objection is on that account sustainable. For these reasons, I would accept [Counsel's] second main submission and hold that the charge over book debts of the company, as created by the debenture, was, unless and until their proceeds were paid into the specified account, a valid fixed charge."
1 Cites
1 Citers
Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association Independent, 13 January 1994; Times, 21 January 1994
13 Jan 1994
QBD
Litigation Practice, Judicial Review, Company
The court should distinguish the concepts of locus standi and capacity when considering applications for judicial review. An unincorporated association is not a legal person and may not seek Judicial Review.
Rules of the Supreme Court Order 53 3(7)
1 Citers
Hunter v Moss; CA 14-Jan-1994 - Gazette, 23 February 1994; Times, 14 January 1994
National Rivers Authority v Alfred McAlpine Homes East Ltd Times, 03 February 1994; Independent, 03 February 1994; [1994] 4 All ER 286
3 Feb 1994
QBD
Environment, Vicarious Liability, Company
A company was criminally liable for the acts of its employees which had been carried out within the normal course of their employment.
Allied Dunbar Assurance Plc v Fowle and Others; CA 23-Feb-1994 - Times, 23 February 1994
Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Man) Ltd; CA 8-Mar-1994 - Gazette, 08 June 1994; Times, 08 March 1994; Gazette, 20 April 1994
BML Group Ltd v Harman and Another; CA 8-Apr-1994 - Times, 08 April 1994; Gazette, 01 June 1994; [1994] 2 BCLC 674; [1994] 1 WLR 893
Regina v Darlington Borough Council Ex Association of Darlington Tax Owners and Another (No 2) Times, 14 April 1994
14 Apr 1994
QBD
Costs, Company
An unincorporated association although not a legal person with the capacity to sue in judicial review, may still suffer an order for costs.
1 Cites
Re Firedart Ltd Official Receiver v Fairall Ind Summary, 18 April 1994
18 Apr 1994
ChD
Company
Director may be disqualified for failing to keep accounting records.
Company Directors Disqualification Act 1986 6
In Re Rex Williams Leisure Plc (In Administration) Times, 04 May 1994; Ind Summary, 09 May 1994; [1994] Ch 1
4 May 1994
CA
Sir Donald Nicholls V-C
Company
On an application for a disqualification order, the director against whom the order is to be made should file an affidavit before the date of the hearing. A disqualification order can have grave consequences and is a serious interference with the freedom of the individual. As to procedure: "The Secretary of State or the official receiver will not usually have first-hand knowledge of the matters on which the disqualification application is founded but, and this is important, a defendant to a disqualification application inevitably will have such knowledge. Many disqualification applications are not defended. When they are, the facts which are seriously in issue may be very limited. It would be absurd, because it would be pointless, for the affidavit evidence in chief always to consist exclusively of matters within the personal knowledge of the deponent." and "Frequently disqualification applications are based on a defendant's conduct as a director over many months or even years. There is a measure of practical good sense in a procedure whereby the plaintiff has first to set out his case, with sufficient clarity and identification of the evidence being relied on for the defendant to know where he stands. Then the defendant puts in his evidence. The plaintiff can see what factual issues there are, and he can then take steps and incur expense in adducing where necessary first-hand evidence on these issues, before the hearing. In this way the genuine issues can be resolved properly and fairly in the interests of the defendant and in the public interest. This procedure does not prejudice a fair and just trial of the issues."
Company Directors Disqualification Act 1986
1 Cites
1 Citers
Re Els Ltd Gazette, 15 June 1994
15 Jun 1994
ChD
Company
Appointment of receiver's crystallised charge - goods no longer company's.
Non-Domestic Rating Regulations 1989
National Westminster Bank Plc and Another v Inland Revenue Commissioners; HL 24-Jun-1994 - Gazette, 07 September 1994; Times, 24 June 1994; Ind Summary, 25 July 1994; [1994] 3 All ER 1; [1995] 1 AC 119; [1994] UKHL TC_67_1
In Re Little Olympian Eachways Ltd Times, 29 July 1994; Ind Summary, 03 October 1994; [1995] 1 WLR 560; [1994] 2 BCLC 420
29 Jul 1994
ChD
Lindsay J
Litigation Practice, Company
A Jersey company (Supreme) had brought a petition under the section against the company. An application was made for security for costs against Supreme. It could only be made if Supreme was resident outside the UK. Supreme argued that, despite being a Jersey company, it was resident in the United Kingdom, and that therefore the order could not be made against it. Held: It was resident in Jersey and the court made the order. The board members were partners in a firm of Jersey advocates. It was run from the offices of that firm. Its only asset was a holding of shares in Little Olympian Each Ways Ltd. An individual who lived in England, Mr Lemos, said that he provided central management and control of Supreme, but he gave no details, and the judge was unimpressed. A letter from one of the Jersey advocates who were directors said that if Mr Lemos was ever to give instructions to them directly he (the Jersey advocate/director) would act in accordance with them provided that he was satisfied that they were consistent with Jersey company law and with the interests of the two persons who were understood to be interested in the share capital. The court referred to 'the shadowy nature' of Supreme, but held it to be resident in Jersey. The ordinary residence of company for the purposes of RSC Ord. 23 is with the central management and control.
Companies Act 1985 459
1 Citers
Richardson v Pitt-Stanley; CA 11-Aug-1994 - Independent, 06 September 1994; Times, 11 August 1994
Barrett v Duckett Ind Summary, 15 August 1994; [1995] 1 BCLC 243
15 Aug 1994
CA
Peter Gibson LJ
Company
A shareholder is to show the court justification for derivative action in company name.
Peter Gibson LJ said: "The shareholder will be allowed to sue on behalf of the company if he is bringing the action bona fide for the benefit of the company for wrongs to the company for which no other remedy is available. Conversely if the action is brought for an ulterior purpose or if another adequate remedy is available, the court will not allow the derivative action to proceed."
1 Citers
Fayed v United Kingdom Independent, 06 October 1994; Times, 11 October 1994; 17101/90; [1994] ECHR 27; (1994) 18 EHRR 393
6 Oct 1994
ECHR
Company, Human Rights
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb of article 6(1) to complain that they had been denied effective access to the courts to challenge the determination made against them. Held: Department of Trade and Industry inspectors are investigators not adjudicators. The absence of a remedy in court, against their report, was not a breach of the Convention. The basic principle underlying article 6(1) is that 'civil claims must be capable of being submitted to a judge for adjudication.' "It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or the remedy." and "The Inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter's civil right to honour and reputation. . . the object of the proceedings before the Inspectors was not to resolve any dispute (contestation) . . . In short, it cannot be said that the Inspectors' inquiry 'determined' the applicants' civil right to a good reputation, for the purposes of Article 6(1), or that its result was directly decisive for that right." The application failed.
European Convention on Human Rights 6
1 Cites
1 Citers
[ Bailii ] - [ Bailii ]
Griffiths and Another v Yorkshire Bank Plc and Others; ChD 7-Oct-1994 - Gazette, 07 October 1994; [1994] 1 WLR 1427
In Re the Working Project Ltd; In Re Fosterdown Ltd and Others Times, 27 October 1994; Ind Summary, 28 November 1994; [1995] BCC 197
27 Oct 1994
ChD
Carnwath J
Company, Insolvency
Company disqualification proceedings may conclude in the county court after a winding up of the company in that court. The power to disqualify directors survives the finishing of the winding up of the company, even though the Official Receiver had had no right to commence the proceedings and the County Court had had no jurisdiction to hear them.
Company Directors Disqualification Act 1986 6(3)
1 Citers
In Re Edennote Ltd; Tottenham Hotspur plc v Ryman [1995] 2 BCLC 248
1 Nov 1994
ChD
Sir John Vinelott
Insolvency, Company
The company Edennote had been wound up on insolvency. It had a possible claim for fees against Tottenham, owned by Mr Sugare. The shareholder, Terry Venables, took an assignment of that action. An application was made to set aside the assignment and to remove the liquidator. Held: The application succeeded. The assignment of the action had been against the expressed wishes of the creditors, who said that the action was worth more. The assignment was set aside and the liquidator was removed. The application to set the assignment aside could be commenced under either section 167 or 168.
A liquidator had to act in the interests of the general body of creditors, and might be removed if the creditors lost confidence in his ability to realise assets effectively and to pursue claims diligently.
Insolvency Act 1986 167(3) 168(5)
1 Cites
1 Citers
Adams v The Queen; PC 4-Nov-1994 - Ind Summary, 09 January 1995; Gazette, 25 January 1995; Times, 04 November 1994; [1995] 1 WLR 52
Regina v The Radio Authority, ex Parte Guardian Media Group Plc; QBD 11-Nov-1994 - Times, 11 November 1994
Regina v Secretary of State for Health ex Parte Federation of Medical Service Ltd Times, 15 November 1994
15 Nov 1994
QBD
Health Professions, Company
Payments made by FHSA's to doctors' co-operatives were lawful even though they were not being made to a company limited by guarantee.
New Zealand Guardian Trust Co Ltd v Brooks Gazette, 05 January 1995; [1994] UKPC 44
17 Nov 1994
PC
Company, Commonwealth
(New Zealand) Trustees release of company also released directors as joint tortfeasors.
[ Bailii ]
Mosgiel Ltd v Mutual Life and Citizens Assurance Co Ltd and Brierley Investments Ltd [1994] UKPC 43
17 Nov 1994
PC
Company
Rights of holders of preference shares
[ Bailii ]
Secretary for Trade and Industry v Gray and Another Times, 24 November 1994
24 Nov 1994
CA
Company
Disqualification depends on conduct of director at insolvency not hearing.
Company Directors Disqualification Act 1986 6(1)
PLG Research Ltd and Another v Ardon International Ltd and Others [1993] FSR 197
25 Nov 1994
ChD
Aldous J
Intellectual Property, Company
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: "Mr. Thorley submitted that if a product had been made available to the public, it was not possible thereafter to patent the product whether claimed as a product claim or a product-by-process claim. That submission is too broad. Under the 1977 Act, patents may be granted for an invention covering a product that has been put on the market provided the product does not provide an enabling disclosure of the invention claimed. In most cases, prior sale of the product will make available information as to its contents and its method of manufacture, but it is possible to imagine circumstances where that will not happen. In such cases a subsequent patent may be obtained and the only safeguard given to the public is section 64 of the Act." The test is the same under the Patents Acts 1949 and 1977.
As to the case of Catnic: "Lord Diplock was expounding the common law approach to the construction of a patent. This has been replaced by the approach laid down by the Protocol. If the two approaches are the same, reference to Lord Diplock's formulation is unnecessary, while if they are different it is dangerous."
The court considered the liability of a company director for the infringement, the authorities clearly showed "that a director of a company was not automatically to be identified with his company for the purpose of the law of tort, however small the company may be and however powerful his control over its affairs" and that "in every case where it is sought to make him liable for his company's torts, it is necessary to examine with care what part he played personally in regard to the act or acts complained of". Also: "I believe it is clear that a director will not be liable unless his involvement would be such as to render him liable as a joint tortfeasor if the company had not existed. For example, the law distinguishes between facilitating and procuring a tort. A person who only facilitates a tort is not liable as a joint tortfeasor whereas a person who procures the tort is liable."
Patents Act 1977 2(2) 64
1 Cites
1 Citers
Director General of Fair Trading v Pioneer Concrete (UK) Ltd, sub nom Supply of Ready Mixed Concrete (No 2); HL 25-Nov-1994 - Independent, 30 November 1994; Times, 25 November 1994; Gazette, 05 January 1995; [1995] 1 AC 456
Secretary of State for Trade and Industry v Gray and Another Ind Summary, 12 December 1994; Gazette, 05 January 1995
12 Dec 1994
CA
Company
A decision as to the unworthiness of a person to be a company director, relates to his past acts and not to his present behaviour.
Company Directors Disqualification Act 1986 6(1)
Acatos and Hutchinson Plc v Watson Times, 30 December 1994; [1995] 1 BCLC 218
30 Dec 1994
ChD
Company
One company may purchase another company, whose sole assets are the purchasing company's own shares where there is no consideration given.
Companies Act 1985 143
