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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: 1995 To: 1995

This page lists 38 cases, and was prepared on 02 April 2018.

 
Re Haden Bill Electrical Ltd [1995] 2 BCLC 280
1995

Robert Walker J
Company
The petitioner had had in practice control of the company as chairman and though he owned only 25% of the shares. His own company loaned £200,000 to the company as working capital. He complained that he had been removed as a director. Held: The company was to be treated as a quasi-partnership. As long as the loan was outstanding he had a legitimate expectation that he could be involved in the management of the company, and his removal as director was unfair.
Robert Walker J discussed the judgment in Tay Bok Choon: "Lord Templeman qualified the expectation of the petitioner in that case by limiting it to the period until 'for some other reason a change in management and control became necessary'; and that qualification is no doubt appropriate in any similar case, including the present case. The personal troubles between Mr Pitt and Mr Watkins ... made it inevitable that there should be a change in management and control, and Mr Watkins' alliance with the Hoggs ... made it inevitable that Mr Pitt should be the one to go, regardless of the rights and wrongs of the personal troubles. Conversely, however unmeritorious Mr Pitt's personal conduct, it could not in my judgment justify the majority shareholders in summarily ejecting him without consultation or discussion about the future of Mr Pitt's equity capital, and R & H's loan capital, in Haden Bill."
Companies Act 1985 459
1 Cites



 
 Re Arrows Ltd No 4; HL 1995 - [1995] 2 AC 75
 
Re PTZFM Ltd [1995] 2 BCLC 354
1995

Judge Baker QC
Company
It had been alleged that a lender had become a shadow director of the borrower company. As to the statutory definition of "shadow director": "This definition is directed to the case where the nominees are put up but in fact behind them strings are being pulled by some other persons who do not put themselves forward as appointed directors. In this case the involvement of the applicants here was thrust upon them by the insolvency of the company. They were not accustomed to give directions. The actions they took, as I see it, were simply directed to trying to rescue what they could out of the company using their undoubted rights as secured creditors. It was submitted to me that it was a prima facie case of shadow directors, but I am bound to say that that is far from obvious." and "I find that there is no prima facie case made out, and it is unlikely that further information will come to light to show that they are shadow directors. The central point, as I see it, is that they were not acting as directors of the company, they were acting in defence of their own interests. This is not a case where the directors of the company, Steven and his colleagues, were accustomed to act in accordance with the directions of others i.e. the applicants here. It is a case here where the creditor made terms for the continuation of credit in the light of threatened default. The directors of the company were quite free to take the offer or leave it."
Companies Act 1985 741(2)
1 Citers


 
New Zealand Forest Products Finance NV v Commissioner of Inland Revenue (1995) 17 NZTC 12,073
1995

Doogue J
Company, Commonwealth
(New Zealand) The taxpayer company was established in the Netherlands Antilles as the subsidiary of a New Zealand parent company. It was a vehicle company whose purpose was to raise borrowings on the Eurobond market and to lend the money on to the New Zealand parent for use in its business or in the businesses of the group. The Netherlands Antilles subsidiary of the ABN group was engaged to act as manager and bookkeeper of the company and subsequently was appointed a director of it. The ABN subsidiary provided a registered office, and ensured compliance with Netherlands Antilles laws and with the articles of association of the company. It also attended to the day to day management of the company. Proposals for bond issues originated with the parent company in New Zealand, but were actually carried into effect by the Netherlands Antilles subsidiary, which had a local board of directors. For some of the time one of the directors was a New Zealander who was also a director of the parent company. Held: ['the objector' means the Netherlands Antilles subsidiary] "All the objector's decisions in respect of issues were taken at meetings outside New Zealand. The issues could not proceed without those decisions. Plainly those decisions of policy in respect of the borrowing were first undertaken by those responsible for NZFP [the parent company], with the reasonable expectation that they would find favour with the directors of the objector, particularly when in the time of Mr Wylie he was a director of both boards and other Australasian directors were closely associated with NZFP. It is also clear upon the evidence, however, that the decisions of the directors of the objector were those of the objectors [sic] independently. … Applying the De Beers test, it is clear the central management and control of the objector was at all times outside New Zealand. All decisions taken by its directors were taken outside New Zealand, as were its shareholders' meetings and its essential management functions, which took place in Curaçao. The Commissioner has argued that the true centre of management and control was Auckland and that the board of the objector merely rubber stamped NZFP decisions. As already indicated, that ignores both the legal and the factual position. … The Commissioner's position confuses NZFC's policy and influence with its powers. … [I]t was not in the interests of NZFP that the directors of the objector should act as pawns or rubber stamps in the way submitted by the Commissioner and they did not do so. … The control and management of the objector was in the hands of its directors and, as already indicated, that was at no time exercised in New Zealand."
1 Citers


 
In re Saul D Harrison and Sons plc [1995] 1 BCLC 14
1995
CA
Hofmann LJ, Neill LJ
Company
The "legitimate expectations" of a party were a label for the "correlative right" to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power conferred upon them by the articles to the prejudice of another member. Depriving a shareholder of his legitimate expectation of involvement in the company can be sufficient to amount to unfair conduct prejudicial to the shareholder. Conduct might be technically unlawful without being unfair and also unfair without being technically unlawful.
Neill LJ said: "For the purpose of determining the legal rights of the petitioner one turns to the memorandum and articles of the company because the articles constitute the contract between the company and the member in respect of his rights and liabilities as a shareholder. Furthermore, it is to be remembered that the management of a company is entrusted to the directors, who have to exercise their powers in the interests of the company as a whole. A shareholder can legitimately complain, however, if the directors exceed the powers vested in them or exercise their powers for some illegitimate or ulterior purpose." and
"The [relevant] conduct must be both prejudicial (in the sense of causing prejudice or harm to the relevant interest) and also unfairly so: conduct may be unfair without being prejudicial or prejudicial without being unfair, and it is not sufficient if the conduct satisfies only one of these tests . . On the facts of this case, the court decided that the petitioners did not show that they had suffered any unfair prejudice by reason of the breaches of duty by the directors. In the same vein, the presence or absence of loss is a significant factor to be taken into account in relation to the alleged breaches of the Agreement."
Hofmann LJ said: "'Unfairly prejudicial' is deliberately imprecise language which was chosen by Parliament because its earlier attempt in s 210 of the Companies Act 1948 to provide a similar remedy had been too restrictively construed. The earlier section had used the word 'oppressive', which the House of Lords in Scottish Co-op Wholesale Society Ltd v Meyer [1958] 3 All ER 66, [1959] AC 324, [1958] 3 WLR 404 said meant 'burdensome, harsh and wrongful'. This gave rise to some uncertainty as to whether 'wrongful' required actual illegality or invasion of legal rights. The Jenkins Committee on Company Law, which reported in 1962, thought that it should not. To make this clear, it recommended the use of the term 'unfairly prejudicial', which Parliament somewhat tardily adopted in s 75 of the Companies Act 1980. This section is reproduced (with minor amendment) in the present s 459 of the Companies Act 1985." It is now further reproduced in section 994." and "In deciding what is fair or unfair for the purposes of s.459, it is important to have in mind that fairness is being used in the context of a commercial relationship. The articles of association are just what their name implies: the contractual terms which govern the relationship of the shareholders with the company and each other. They determine the powers of the board and the company in general meeting and everyone who becomes a member of a company is taken to have agreed to them. Since keeping promises and honouring agreements is probably the most important element of commercial fairness, the starting point in any case under s.459 will be to ask whether the conduct of which the shareholder complains was in accordance with the articles of association."
Companies Act 1985 459
1 Citers


 
In re Grayan Building Services Ltd [1995] Ch 241; [1995] 3 WLR 1
1995
CA
Henry LJ, Hoffmann LJ, Neill LJ
Litigation Practice, Company
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question.
Hoffmann LJ said: "The concept of limited liability and the sophistication of our corporate law offers great privileges and great opportunities for those who wish to trade under that regime. But the corporate environment carries with it the discipline that those who avail themselves of those privileges must accept the standards laid down and abide by the regulatory rules and disciplines in place to protect creditors and shareholders. And, while some significant corporate failures will occur despite the directors exercising best managerial practice, in many, too many, cases there have been serious breaches of those rules and disciplines, in situations where the observance of them would or at least might have prevented or reduced the scale of the failure and consequent loss to creditors and investors."
Hoffmann LJ said: "The court is concerned solely with the conduct specified by the Secretary of State . . under rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987. It must decide whether that conduct, viewed cumulatively and taking into account any extenuating circumstances, has fallen below the standards of probity and competence appropriate for persons fit to be directors of companies." and "Some of the examples given by the judge are of extenuating circumstances which accompanied the conduct in question. These are matters which it seems to me would always be proper for the court to take into account. On the other hand, if the judge meant that the court was concerned with anything other than whether the conduct, taken in its setting, fell below the appropriate standard, I would respectfully disagree."
Company Directors Disqualification Act 1986 6 - Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987
1 Citers


 
Viho v Commission Times, 31 January 1995; T-102/92; [1995] EUECJ T-102/92
12 Jan 1995
ECFI

European, Company
Operations as between parent and subsidiary company are not 'in concert'
EEC Treaty 85(1)
[ Bailii ]
 
Re Dominion International Group Plc Gazette, 12 April 1995; Ind Summary, 30 January 1995
30 Jan 1995
ChD

Litigation Practice, Company
The Court may require deponents to attend in person for cross examination. It has no jurisdiction to order oral evidence on applications to disqualify a director.
Company Directors Disqualification Act 1986

 
Steans Fashions Ltd and Another v Legal and General Assurance Society Ltd Gazette, 08 February 1995; Times, 31 December 1994
8 Feb 1995
CA

Company, Litigation Practice
A company could be re-instated to the companies register retrospectively for the purposes of a court action. The case was suspended, and not to be struck-out, pending that re-instatement.
Companies Act 1985 653

 
Balkanbank v Naser Taher and Others Times, 14 April 1995; [1995] 1 WLR 1067
13 Feb 1995
QBD
Clarke J
Torts - Other, Company
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered as a result of the injunction. The Irish court had ordered an enquiry as to the damages. The counterclaim now additionally pleaded torts of malicious prosecution against the plaintiff. The defendant sought to add as defendants in the original claim (and claimants in the counterclaim) subsidiary companies which had also suffered as a result of the injunction. Held: The English court had jurisdiction to entertain the counterclaim relating to an alleged breach of the joint venture agreement under which the original injunction had been granted. It was desirable that the additional defendants should be joined to avoid a multiplicity of proceedings, and the claims fell within RSC15.6 after it had been extended following Vendervell Trustees. The remedy under a counterclaim might also be available to the company's subsidiaries. It was said that a claimant (the additional defendants here) could not pursue a claim of civil malicious prosecution where they were not parties to the original claim. It was arguable that a tort of malicious prosecution of a civil action could succeed and it should go ahead, with the defendants joined in as claimants under the counterclaim. The claim for abuse of process should also proceed to trial.
1 Cites


 
In Re Companies (Nos 007923 and 007924) Gazette, 22 February 1995
22 Feb 1995
CA

Company
Advertisement of petition was restrained where it was of a solvent company for public interest purposes.
Insolvency Act 1986 124A

 
In Re Neptune (Vehicle Washing Equipment) Ltd: Neptune (Vehicle Washing Equipment) Ltd v Fitzgerald Times, 02 March 1995; Ind Summary, 13 March 1995; [1995] 1 BCLC 352; [1996] Ch 274
2 Mar 1995
ChD

Company
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.
Companies Act 1985 317
1 Citers



 
 In Re the British Union for the Abolition of Vivisection; ChD 4-Mar-1995 - Times, 04 March 1995
 
Lloyd's Register of Shipping v Societe Campenon Bernard Times, 03 May 1995; C-439/93; [1995] EUECJ C-439/93
6 Apr 1995
ECJ

European, Company
Actions which would be deemed to have been undertaken by a branch of company need not necessarily be performed where the branch is physically located.
Brussels Convention1968 5(5)
1 Citers

[ Bailii ]
 
Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd Times, 21 April 1995
21 Apr 1995
OHCS

Company
An arrangement creating a common economic interest is not enough to create partnership.
1 Cites

1 Citers


 
In Re Manlon Trading Ltd Times, 22 June 1995; [1995] 1 BCLC 578
22 Jun 1995
CA
Staughton LJ
Company
Company Director Disqualification proceedings were struck out for delay. There has to be a balance between the public interest in securing the disqualification of bad directors and the prejudice to private citizens and the people subject to the application process. Proceedings which are brought at the end of the two-year period are liable to be struck out, if there has been inordinate or inexcusable delay.
Staughton LJ said that "the public interest in the disqualification of unfit directors may . . have to yield to the lapse of time." The question he posed was "whether that public interest is outweighed by the requirements of justice in the particular circumstances of the particular case."
Company Directors Disqualification Act 1986
1 Cites

1 Citers


 
Meridian Global Funds Management Asia Ltd v Securities Commission Gazette, 19 July 1995; Times, 29 June 1995; [1995] 2 AC 500; [1995] BCC 942; [1995] 3 All ER 918; [1995] UKPC 5; [1995] 3 WLR 413; [1995] 2 BCLC 116
26 Jun 1995
PC
Lord Hoffmann, Lord Keith of Kinkel, Lord Jauncev of Tullichettle, Lord Mustill, Lord Lloyd of Berwick
Financial Services, Vicarious Liability, Company
(New Zealand) The former managing director of Meridian used the company's funds to make it a substantial security holder but neither he nor anyone else gave the requisite statutory notice requiring every person who became a "substantial security holder" to give notice of his interest both to the company and to the Stock Exchange as soon as he knew he was a substantial security holder. The question was whether his acts or omissions were the acts or omission of the company so as to render the company liable to the statutory penalties. Held: The company was liable. It was a matter of construction in each situation to decide whether an employee's knowledge is to be imputed to his employer. It might be so imputed where this was necessary to make legislation effective.
Lord Hoffmann said that the rules for attributing the acts of a director to the company are primarily in its constitution, but "These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability or tort.
It is worth pausing at this stage to make what may seem an obvious point. Any statement about what a company has or has not done, or can or cannot do, is necessarily a reference to the rules of attribution (primary and general) as they apply to that company. Judges sometimes say that a company "as such" cannot do anything; it must act by servants or agents. This may seem an unexceptionable, even banal remark. And of course the meaning is usually perfectly clear. But a reference to a company "as such" might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such, no ding an sich, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company.
The company's primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person "himself" as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company?
One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, i.e. if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc. of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy."
Lord Hoffmann: ". . . their Lordships would wish to guard themselves against being understood to mean that whenever a servant of a company has authority to do an act on its behalf, knowledge of that act will for all purposes be attributed to the company. It is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company. Sometimes, as in In re Supply of Ready Mixed Concrete (No. 2) [1995] 1 A.C. 456 and this case, it will be appropriate….. On the other hand, the fact that a company's employee is authorised to drive a lorry does not in itself lead to the conclusion that if he kills someone by reckless driving, the company will be guilty of manslaughter. There is no inconsistency. Each is an example of an attribution rule for a particular purpose, tailored as it always must be to the terms and policies of the substantive rule."
1 Citers

[ Bailii ]
 
Meridian Global Funds Management Asia Ltd v The Securities Commission Co [1995] UKPC 26; [1995] 1 AC 500
26 Jun 1995
PC

Company
(New Zealand) Lord Hofmann said: "There is in fact no such thing as the company as such, no 'ding an sich', only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company. The company's primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person 'himself', as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company? One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, ie if the act giving rise to liability was specifically authorised by a resolution of the board or an unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy."
1 Citers

[ Bailii ]
 
Tribe v Tribe Gazette, 15 September 1995; Times, 14 August 1995; [1996] Ch 107; [1995] 3 WLR 913; [1995] EWCA Civ 20; [1995] 4 All ER 236
26 Jul 1995
CA
Millett LJ
Equity, Company
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations and to safeguard his position and with the intention of defrauding his creditors, he transferred the remaining shares. The judge found that the father and the son had agreed that the shares would be held on trust for the father pending the settlement of the dilapidation claims. Held: The illegal (but unused) purpose of a gift was admitted as evidence to rebut the presumption of advancement.
Millett LJ "But it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor's intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn." and
“In my opinion the following propositions represent the present state of the law. (1) Title of property passes both at law and in equity even if the transfer is made for an illegal purpose. The fact that title has passed to the transferee does not preclude the transferor from bringing an action for restitution. (2) The transferor’s action will fail if it would be illegal for him to retain any interest in the property. (3) Subject to (2) the transferor can recover the property if he can do so without relying on the illegal purpose. This will normally be the case where the property was transferred without consideration in circumstances where the transferor can rely on an express declaration of trust or a resulting trust in his favour. (4) It will almost invariably be so where the illegal purpose has not been carried out. It may be otherwise where the illegal purpose has been carried out and the transferee can rely on the transferor’s conduct as inconsistent with his retention of a beneficial interest. (5) The transferor can lead evidence of the illegal purpose whenever it is necessary for him to do so provided that he has withdrawn from the transaction before the illegal purpose has been wholly or partly carried into effect. It will be necessary for him to do so (i) if he brings an action at law or (ii) if he brings proceedings in equity and needs to rebut the presumption of advancement. (6) The only way in which a man can protect his property from his creditors is by divesting himself of all beneficial interest in it. Evidence that he transferred the property in order to protect it from his creditors, therefore, does nothing by itself to rebut the presumption of advancement; it reinforces it. To rebut the presumption it is necessary to show that he intended to retain a beneficial interest and conceal it from his creditors. (7) The court should not conclude that this was his intention without compelling circumstantial evidence to this effect. The identity of the transferee and the circumstances in which the transfer was made would be highly relevant. It is unlikely that the court would reach such a conclusion where the transfer was made in the absence of an imminent and perceived threat from known creditors.”
1 Citers

[ Bailii ]
 
Secretary of State for Trade and Industry v Bannister and Another Independent, 11 August 1995; Times, 26 July 1995
26 Jul 1995
CA

Company
A court's discretion to stay a disqualification order is to be used only in exceptional cases, but it does retain an has inherent power to stay disqualification of director pending an appeal.
Company Directors Disqualification Act 1986

 
Re BSB Holdings Ltd; London Merchant Securities Plc v Chargeurs Sa and Others Times, 02 August 1995; Independent, 07 September 1995
2 Aug 1995
ChD
Arden J
Company
Protection of minority shareholders was not to be used to impede the proper management of a company's affairs. Directors must act in the company's overall best interests despite prejudice to one class of shareholders.
Arden J said: "However, in my judgment, it is not the effect of Re Saul D Harrison & Sons plc that a remedy under section 459 can be given only if the directors have acted in breach of duty or if the company has breached the terms of its articles or some other relevant agreement. These matters constitute in most cases the basis for deciding what conduct is unfair. But the words of the section are wide and general and, save where the circumstances are governed by the judgments in Re Saul D Harrison & Sons plc, the categories of unfair prejudice are not closed. The standards of corporate behaviour recognised through section 459 may in an appropriate case thus not be limited to those imposed by enactment or existing case law."
Companies Act 1985 459
1 Cites

1 Citers


 
In Re Living Images Ltd Times, 07 August 1995; [1996] 1 BCLC 348
7 Aug 1995
ChD

Company
Director must have intended fraudulent preference for creditor to be disqualified. Trading whilst insolvent amounts to trading with creditors' money.
1 Citers



 
 Schooler v Commissioners of Customs and Excise; CA 9-Aug-1995 - Times, 09 August 1995
 
Barclays Bank Plc and Others v British and Commonwealth Holdings Plc Independent, 25 August 1995; Times, 10 August 1995; Gazette, 13 September 1995
10 Aug 1995
CA

Company
A company remained liable in damages for a breach of a covenant to redeem its own shares despite the obligations under the section making the failure to redeem the shares itself not actionable.
Companies Act 1985 178(3)


 
 Re Richborough Furniture Ltd; ChD 21-Aug-1995 - Ind Summary, 21 August 1995; [ 1996] BCC 155
 
Prudence Mauthoor v THF Delap and Associates Limited [1995] EWCA Civ 5
2 Oct 1995
CA
Lord Justice Staughton Lord Justice Swinton Thomas Lord Justice Judge
Company, Litigation Practice
The parties agreed for the transfer of shares. The payment cheque was not honoured. The appellant first claimed an absence of consideration, then sought to amend her defence to say that she had acted under economic duress. Threats had been made as to the sale of the company and actions which would threaten the vue of the company. The amendment was not allowed. She appealed. Held: Courts set out to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases. Whether an amendment should be granted is in the trial judge's discretion, guided by his assessment of where justice lays. In this case the discretion had not been wrongly exercised.
1 Cites

1 Citers

[ Bailii ]
 
In Re A Company No 007816 of 1994, Same Re 007818, 007819, 007820, etc Times, 13 October 1995; [1997] 2 BCLC 685
13 Oct 1995
ChD

Company, Insurance
The company was said to have acted in breach of section 2(1) of the1982 Act. Held: A Minister's application to wind up companies in the public interest must be cogently argued. Insurance authorisation depends on where the effecting and carrying out of contracts of insurance occurs. The purpose of the addition of the words "as principal", which had not appeared in earlier equivalent legislation, was to confirm that it did not extend to agents duly authorised by insurers.
That an insurance contract is made outside the UK does not mean that there cannot be the carrying on of an insurance business within the UK. Some activities conducted by brokers in the UK on behalf of offshore companies (other than the mere acceptance of risk) can amount to evidence that the offshore companies were carrying on business in the UK.
Companies Act 1986 124A - Insurance Companies Act 1982 2(1)

 
Danemark Limited v BAA Plc [1995] EWCA Civ 6
16 Oct 1995
CA

Company, Costs, Litigation Practice
The defendant had obtained an order or additional security for costs against the defendant company (registered with £100 share capital) under the section. It appealed. There was evidence to suggest some fraud by the plaintiff, but also that there was a genuine claim. The court had a difficult balance to draw between stifling a proper claim by a small company and putting the defendant at risk of incurring costs the plaintiff could not meet. The judge had erred, and the security order was vacated.
Companies Act 1985 726(1)
1 Cites

[ Bailii ]
 
Agrotexim and Others v Greece 14807/89; (1996) EHRR 250; [1995] ECHR 42
24 Oct 1995
ECHR

Human Rights, Company
Hudoc Not necessary to examine preliminary objection (ratione temporis); Preliminary objection allowed (victim); Lack of jurisdiction (complaint inadmissible, new complaint)
The applicant companies held shares in a company owning development land. The local Council took steps to expropriate the land. The shareholders complained that the company's rights had been violated and that, in turn, that had adversely affected their rights because of the resulting fall in the value of their shares. The complaint was based on the proposition that the alleged violation of the Brewery's rights to peaceful enjoyment of its possessions had affected their own financial interests because of the resulting fall in the value of their shares. Held: A lifting of the corporate veil so as to disregard the fact that the person directly affected – the Brewery – was a separate legal personality and was (if anyone was) the victim, would be justified only in exceptional circumstances such as where it itself could not have raised the complaint.
European Convention on Human Rights
1 Citers

[ Bailii ] - [ Bailii ]
 
Panel On Takeovers and Mergers and Another v William Cheng Kai-Man Co [1995] UKPC 39
30 Oct 1995
PC

Commonwealth, Company
(Hong Kong)
[ Bailii ]

 
 Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3); CA 2-Nov-1995 - Ind Summary, 11 December 1995; Gazette, 29 November 1995; Times, 07 November 1995; [1996] 1 WLR 387; [1995] EWCA Civ 55; [1996] 1 All ER 585
 
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25; (1995) 132 ALR 133; (1995) 70 ALJR 47; [1996] ANZ Conv R 280; (1995) 19 Leg Rep 14
9 Nov 1995

Deane, Dawson, Toohey, McHugh, Gummoww JJ
Company
High Court of Australia McHugh J spoke of the so called 'reliance rule': "The [reliance] rule has no regard to the legal and equitable rights of the parties, the merits of the case, the effect of the transaction in undermining the policy of the relevant legislation or the question whether the sanctions imposed by the legislation sufficiently protect the purpose of the legislation. Regard is had only to the procedural issue; and it is that issue and not the policy of the legislation or the merits of the parties which determines the outcome. Basing the grant of legal remedies on an essentially procedural criterion which has nothing to do with the equitable positions of the parties or the policy of the legislation is unsatisfactory, particularly when implementing a doctrine which is founded on public policy."
[ Austlii ]
 
Regina v Smith (Wallace Duncan) (No 1) Gazette, 06 December 1995; Times, 13 November 1995; Ind Summary, 20 November 1995; [1996] 2 CAR 1; [1996] 2 Cr App R 1
13 Nov 1995
CACD
Rose J, VP
Company, Crime
In the offence of fraudulent trading, 'creditors' are those to whom money was owed, including future creditors, not just those who can presently sue. Deceptions practised in UK, but having their effect abroad are prosecutable here. The only feature of the circumstances which had occurred outside England was the transfer of funds to the bank's New York account. The court applied the comity rule to allow jurisdiction rather than the 'last act' rule. "In Sansom and others, 92 Cr App R 115, in a judgment delivered by Taylor LJ, Liangsiriprasert was applied by this court in a conspiracy case. We see no distinction, in relation to the principles of jurisdiction, between conspiracy and obtaining by deception. Accordingly the English court had jurisdiction [in this case].
Companies Act 1985 458 - Theft Act 1968 15
1 Cites

1 Citers


 
International Bulk Shipping and Services Ltd v President of India and Another Ind Summary, 11 December 1995; [1996] 2 Lloyd's Rep 474; [1996] 1 All ER 1017
11 Dec 1995
CA
Evans LJ
Litigation Practice, Company
Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had persuaded the arbitrators that the companies were the proper claimants and had commenced the enforcement actions on the same basis. His decision to do so was intended to avoid the possibility that set-offs would be raised in respect of debts owed by associated ship-owning companies if he sued in his own name. When he started the actions, however, the companies had been wound up and thus ceased to exist. The trustee applied, after the limitation period had expired, to have his name substituted for those of the companies pursuant to O. 20 r 5. Held: Proceedings under name of a dissolved company cannot be revived after limitation period by trustee. Appeal denied.
Evans LJ said: "The rule refers to 'the party intending to sue or.. intended to be sued'. When it is said that the wrong plaintiff has been named, this must be taken as reference to the intention of persons who caused the writ to be issued, rather than of the person in fact named. Those persons in the present case were the trustee or the bankruptcy estate. They were mistaken in thinking that the companies were still in existence and entitled to sue. If they had known the true facts, they would or might well have named the trustee or the bankruptcy estate as sole plaintiff or as a co-plaintiff. But that was a decision as to who the plaintiffs should be, and no doubt for good reasons they chose to assert the companies' rights under the awards, rather than whatever rights the trustee or the bankrupt estates had acquired.
The rule envisages that the writ was issued with the intention that a specific person should be the plaintiff. That person can often but not invariably be identified by reference to a relevant description. The choice of identity is made by the persons who bring the proceedings. If having made that choice they use the wrong name, even though the name they sue may be that of a different legal entity, then their mistake as to the name can be corrected. But they cannot reverse their original identification of the party who is to sue. This interpretation of the rule derives not only from the phrase 'correct the name of the party' but also from the requirement that the mistake must not have been such as to cause any reasonable doubt as to the identity of the person intending to sue."
1 Cites

1 Citers


 
Practice Direction No 2 of 1995: Directors Disqualification Ind Summary, 01 January 1996; [1996] 1 All ER 442
15 Dec 1995
ChD
Sir Richard Scott VC
Company
General practice directions were given to ensure the speedy disposal of disqualification proceedings. The direction deals with matters arising and to be dealt with on the first summons hearing, the setting down and fixing the date of the trial, time estimates, any pretrial review, the arrangement of documents for the hearing, and the summary procedure, and for hearings outside London.
Insolvent Companies (Disqualification of Unfit Directors) Propceedings Rules 1987

 
Penrose and Another v Official Receiver Times, 19 December 1995
19 Dec 1995
ChD

Company
Directors of a failed company were not to restart under similar name; strict criteria applied.
Insolvency Act 1986 216


 
 Jonathan Alexander Ltd v Proctor; CA 19-Dec-1995 - Times, 03 January 1996; Ind Summary, 22 January 1996; [1996] 1 WLR 518

 
 Practice Direction: (Companies Court: Directors Disqualification); ChD 21-Dec-1995 - Times, 21 December 1995
 
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