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Company - From: 1996 To: 1996

This page lists 66 cases, and was prepared on 02 April 2018.

 
Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569; [1996] 2 BCLC 513
1996


Company
If fraud is to be alleged against a company director in disqualification proceedings, the allegation must be distinctly alleged and as distinctly proved.
Company Directors Disqualificatin Act 1985
1 Cites

1 Citers


 
Christensen v Scott [1996] 1 NZLR 273
1996

Thomas J
Commonwealth, Company, Damages
(New Zealand Court of Appeal) Thomas J said: “the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the profit which would have been obtained from harvesting the potato crop. That loss is reflected in the diminution in the value of Mr and Mrs Christensen’s shares. They can no longer realise their shares at the value they enjoyed prior to the alleged default of their accountants and solicitors.” and "We do not need to enter upon a close examination of the Newman Industries decision. It has attracted not insignificant and, at times, critical comment. See eg L C B Gower, Gower's Principles of Modern Company Law (5th ed, 1992) at pp 647-653; L S Sealy, "Problems of Standing, Pleading and Proof in Corporate Litigation" (Ed, B.G. Pettit) at p 1 esp at pp 6-10; and M J Sterling, "The Theory and Policy of Shareholder Actions in Tort" (1987) 50 MLR. 468, esp at pp 470-474. It may be accepted that the Court of Appeal was correct, however, in concluding that a member has no right to sue directly in respect of a breach of duty owed to the company or in respect of a tort committed against the company. Such claims can only be bought by the company itself or by a member in a derivative action under an exception to the rule in Foss v Harbottle (1843) 2 Hare 461. But this is not necessarily to exclude a claim brought by a party, who may also be a member, to whom a separate duty is owed and who suffers a personal loss as a result of a breach of that duty Where such a party, irrespective that he or she is a member, has personal rights and these rights are invaded, the rule in Foss v Harbottle is irrelevant. Nor would the claim necessarily have the calamitous consequences predicted by counsel in respect of the concept of corporate personality and limited liability. The loss arises not from a breach of duty owed to the company but from a breach of duty owed to the individuals. The individual is simply suing to vindicate his own right or redress a wrong done to him or her giving rise to a personal loss.
Thomas J continued: "We consider, therefore, that it is certainly arguable that, where there is an independent duty owed to the plaintiff and a breach of that duty occurs, the resulting loss may be recovered by the plaintiff. The fact that the loss may also be suffered by the company does not mean that it is not also a personal loss to the individual. Indeed, the diminution in the value of Mr and Mrs Christensen's shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the profit which would have been obtained from harvesting the potato crop. That loss is reflected in the diminution in the value of Mr and Mrs Christensen's shares. They can no longer realise their shares at the value they enjoyed prior to the alleged default of their accountants and solicitors. (For a discussion of the policy issues which arise in considering these questions, see Sterling (supra) at pp 474-491.) In circumstances of this kind the possibility that the company and the member may seek to hold the same party liable for the same loss may pose a difficulty. Double recovery, of course, cannot be permitted. The problem does not arise in this case, however, as the company has chosen to settle its claim. Peat Marwick and McCaw Lewis accepted a compromise in the knowledge that Mr and Mrs Christensen's claim was outstanding. It may well be, as was acknowledged by Mr Pidgeon in the course of argument, that an allowance will need to be made for the amount already paid to the liquidator in settlement of the company's claim. It is to be acknowledged, however, that the problem of double recovery may well arise in other cases. No doubt, such a possibility is most likely with smaller private companies where the interrelationship between the company, the directors and the shareholders may give rise to independent duties on the part of the professional advisers involved. But the situation where one defendant owes a duty to two persons who suffer a common loss is not unknown in the law, and it will need to be examined in this context. It may be found that there is no necessary reason why the company's loss should take precedence over the loss of the individuals who are owed a separate duty of care. To meet the problem of double recovery in such circumstances it will be necessary to evolve principles to determine which party or parties will be able to seek or obtain recovery. A stay of one proceeding may be required. Judgment, with a stay of execution against one or other of the parties, may be in order. An obligation to account in whole or in part may be appropriate. The interest of creditors who may benefit if one party recovers and not the other may require consideration. As the problem of double recovery does not arise in this case, however, it is preferable to leave an examination of these issues to a case where that problem is squarely in point. "
and "Essentially, Mr and Mrs Christensen are alleging that as a result of Peat Marwick and McCaw Lewis's breach of duty owed to them personally they suffered a personal loss, that is, a reduction in the value of their assets. Their assets in this case had been channelled into their company. Thus, it is arguable that the diminution in the value of their shareholding is the measure of that loss. It may well be that when the evidence is heard it will be apparent that Mr and Mrs Christensen's claim is inflated, but that is a matter for the trial. We are not prepared to hold at this stage that they do not have an arguable case to recover damages for the breach of an acknowledged duty.""
1 Cites

1 Citers


 
Lowe v Fahey [1996] 1 BCLC 262
1996


Company
Where there has been material misconduct, even in the shape of a single act, the primary remedy is under section 459, not by a shareholder's derivative action.
Companies Act 1985 459
1 Citers


 
Re Sutton Glassworks Ltd [1996] BCC 174
1996
ChD
Chadwick J
Company
Referring to the procedure in disqualification proceedings of serving an affidavit, the court held: "That procedure, and, in particular, the mandatory requirement in r 6, emphasises the importance to the respondent of being able to ascertain with clarity from the evidence filed on behalf of the applicant what are the criticisms laid against him, and upon what evidence the applicant intends to rely. It is on the basis of the applicant's initial affidavit evidence that the respondent is required to decide whether to advance any evidence of his own and, if so, what issues he must address by that evidence. It should not be open to the applicant, by making general allegations of misconduct, to require the respondent to put forward his own account of events, and then to rely upon the respondent's own account to support the case for a disqualification order."
Company Directors Disqualification Act 1986
1 Citers


 
Re Moonlight Foods Ltd , Secretary of State for Trade and Industry v Hickling [1996] BCC 678
1996

HH Judge Weeks
Company
The Secretary of State, when presenting an application for the disqualification of a company director is obliged to present a balanced picture. "It is accepted that these are not ordinary adversarial proceedings but have an element of public interest and may entail penal consequences. It follows that there is a duty on the applicant to present the case against each respondent fairly. Many of these applications go by default or are defended by litigants in person, and the practice is for an official in the Department of Trade and Industry to swear a short affidavit referring to the charges, specified in a detailed affidavit sworn by the receiver or liquidator.
In my judgment, that second affidavit should not omit significant available evidence in favour of any respondent. It should attempt to deal with any explanation already proffered by any of the respondents. It should."
Company Director Disqualification Act 1986
1 Citers


 
Secretary of State for Trade and Industry v McTighe (No 2) [1996] 2 BCLC 477
1996
CA

Company
The court accepted that it was misconduct for a director to pursue: "the policy of not paying the debts of creditors who are not pressing when it is known that the company has insufficient reserves enabling it to trade except at the risk of such creditors."
Company Directors Disqualification Act 1985
1 Citers


 
Re Dominion International Group (No. 2) [1996] 1 BCLC 572
1996

Knox J
Company
Knox J said: "On the other hand it has been held that where the directors are all in fact sufficiently aware of the matter that should be formally disclosed, the absence of formal disclosure may not amount to more than a technical non-declaration of an interest."
Companies Act 1985 727
1 Citers


 
Davies v H and E Ecroyd Ltd [1996] 30 EG 97; (1996) 2 EGLR 5
1996
ChD
Blackburne J
Company, Agriculture
The partnership was made up of a 109 acre dairy holding owned by one partner, and the second partner managed the business. The dairy holding itself was kept out of the partnership assets by explicit agreement. D, the former manager claimed, on the partnership being dissolved, that a milk quota had become a partnership asset by dint of his efforts. Held: The value of the quota was not on a par with the agricultural holding, since it arose only after the partnership commenced. A court should not extend what the partners had set out in the agreement.
Blackburn J set out the basis for giving partners rights in relation to the asset of a partner as follows: "It arises where a partnership expends money for the benefit of a partner in circumstances where justice requires that, in taking partnership accounts, some allowance should be made to the partnership against that partner for some or all of the amount of the expenditure or of the enhanced value brought about by the expenditure."
Arbitration Act 1979 2
1 Cites


 
Steele v EVC International NV [1996] STC 785
1996


Taxes - Other, Company
Control of a company within the section means shareholder control.
Income and Corporation Taxes Act 1988 416
1 Citers


 
Glaxo Plc v Glaxowellcome Limited [1996] FSR 388
1996
ChD
Lightman J
Intellectual Property, Company
The defendant company registration agent had registered the name Glaxowellcome Limited shortly after the announcement of Glaxo Plc’s intention to make a take-over bid for Wellcome and if it succeeded to re-name itself Glaxo-Wellcome Plc. He then offered to sell the company to Glaxo Plc at a high price. The company had not traded, but it was considered likely that it would, it being implicit in the demand for a high price for the company and that the Defendant was threatening that if it was not paid he would use or transfer the company to someone else who would use it to injure Glaxo’s goodwill. An application was made for an interlocutory injunction. Held: The Judge granted a mandatory interlocutory injunction requiring the name of the company to be changed. This amounted to final relief, because the object was to enable Glaxo themselves to change their name to Glaxo-Wellcome, thereby making a restoration of the original position virtually impossible. Lightman J: "the court will not countenance any such pre-emptive strike of registering companies with names where others have the goodwill in those names and the registering party demands a price for changing the names".
1 Citers


 
Re BSB Holdings Ltd (No 2) [1996] 1 BCLC 155
1996
ChD
Arden J
Company
Arden J considered a submission that there could be no breach of duty by the directors unless the substantial purpose of their acts was to discriminate improperly against a group of shareholders. In rejecting that submission she commented as follows:- "The difficulty with this analysis is that directors could commit a breach of duty if they exercised a power for the purpose of discriminating against a group of shareholders but not if they failed to consider the interests of that group of shareholders at all. Moreover, where the proposed act under consideration has different effects on different groups of shareholders in a company, it is difficult to apply the test that what is done must be done in the interests of the members generally, who are the company for this purpose (see Greenhalgh v Arderne Cinemas Ltd [1951] Ch 286; Parke v The Daily News Ltd [1962] Ch 927 at 963). The duty as formulated by Goulding J more accurately records what must be done to strike the right balance between conflicting sections of interest. It is in my judgment an accurate statement of the duty to which directors are subject in that situation. The duty is stated in very general terms; its content cannot be exhaustively defined but must depend on the facts of a particular case."
and "However, in my judgment, it is not the effect of Re Saul D Harrison & Sons plc that a remedy under s 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 s 459 may in an appropriate case thus not be limited to those imposed by enactment or existing case law."
1 Cites

1 Citers


 
In re Brenfield Squash Rackets Ltd [1996] 2 BCLC 184
1996
ChD
Rattee J
Company
The court heard an application by a minority shareholder for an order for the sale of the interest of the majority shareholder to him. Rattee J said: "It may be comparatively unusual for a majority shareholder of the company to be ordered to sell its shares to minority shareholder petitioners, but in the circumstances of this case I consider it appropriate."
Companies Act 1985 439
1 Citers


 
In re Polly Peck International plc [1996] 2 All ER 433
1996
ChD
Robert Walker J
Company, Insolvency
It was argued, unsuccessfully, that a special purpose company incorporated in the Cayman Islands should be regarded as a single economic unit with the holding company, so as to eliminate "double dip" as well as double dividend. Held: There would be obvious unfairness to other creditors if both a principal creditor and a surety were entitled to prove for and receive a dividend in respect of what is in substance a single debt. Robert Walker J said: "The rule against double proof is a long-standing principle of the law of bankruptcy, and has applied in the winding up of companies since the Companies Act 1862 (see Re Oriental Commercial Bank, ex p European Bank (1871) LR 7 Ch App 99). It has often been described in terms of straightforward and obvious fairness, depending on substance, not form
. . Much the commonest situation in which the rule against double proof applies is that of suretyship. Indeed it has been said that it applies only in a situation which actually is, or is analogous to, that of suretyship (the latter category includes the old cases on negotiable instruments considered in Re Oriental Commercial Bank ex p European Bank). It is therefore convenient to set out some very elementary rules as to suretyship, shorn of complications arising from the provision of security or from the Ellis v Emmanuel distinction. In what follows, C is the principal creditor, D the principal debtor, and S the surety (and all are companies).
(1) So long as any money remains due under the guaranteed loan, C can proceed against either D or (after any requisite notice) S.
(2) If D and S are both wound up, C can prove in both liquidations and hope to receive a dividend in both, subject to not recovering in all more than 100p in the pound.
(3) S’s liquidator can prove in D’s liquidation (under an express or implied right of indemnity) only if S has paid C in full (so that C drops out of the matter and S stands in its place).
(4) As a corollary of (3) above, S’s liquidator cannot prove in D’s liquidation in any way that is in competition with C; though S has a contingent claim against D (in the event of C being paid off by S), S may not make that claim if it has not in fact paid off C.
“The situation in (2) above is what insolvency practitioners call a ‘double-dip’, which is permissible; the situation in (4) above is the simplest case of what would be double proof, which is not permissible.
“So far as the basis of the rule needs (or indeed allows of) further explanation it is that the surety’s contingent claim is not regarded as an independent, free-standing debt, but only as a reflection of the ‘real’ debt – that in respect of the money which the principal creditor had loaned to the principal debtor.”
1 Citers



 
 Williams and Another v Natural Life Health Foods Ltd and Another; QBD 18-Jan-1996 - Independent, 18 January 1996; [1996] BCLC 288

 
 DTC (Cnc) Ltd v Gary Sargent and Co; ChD 25-Jan-1996 - Times, 25 January 1996
 
Parlett v Guppys (Bridport) Ltd and Others Times, 08 February 1996
8 Feb 1996
CA

Company
Transfer of shares can be supported by payment of salary in return by company.
Companies Act 1985 151
1 Cites

1 Citers


 
Bautiaa and Societe francaise maritime v Directeurs des services fiscaux des Landes and du Finistere C-197/94; C-252/94; [1996] ECR I-505; [1996] EUECJ C-197/94
13 Feb 1996
ECJ

European, Company
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.
1 Citers

[ Bailii ]
 
Brostoff v Clarke Kenneth Leventhal Unreported, 11 March 1996
11 Mar 1996

Dyson J
Company
No partnership between supposed partners where genuinely separate businesses were carried on.
1 Citers


 
ICI Plc v Colmer (Inspector of Taxes) Times, 15 March 1996
15 Mar 1996
HL

Company
A 'Holding company' under the Act meant a company resident in the UK; A reference was made of the issues to the European Court.
Income and Corporation Taxes Act 1970 285(5)(b)
1 Cites

1 Citers


 
Hare and Others v Customs and Excise Commissioners Gazette, 20 March 1996
20 Mar 1996
CA

Company
Use of company as cloak for crime allowed the sale of its assets even though director charged.

 
Secretary of State for Trade and Industry v Arif and Others Times, 25 March 1996; [1997] 1 BCLC 34
25 Mar 1996
ChD

Company
The length of a director's disqualification is not to be discounted for the time elapsed up to the hearing of the case. As to section 221 of the Companies Act, it : "has, at the least, two purposes. First, to ensure that those who are concerned in the direction and management of companies which trade with the privilege of limited liability, do maintain sufficient accounting records to enable them to know what the position of the company is from time to time. Without that information, they cannot act responsibly in making decisions whether to continue trading. But equally important is a second purpose. If the company fails, a licensed insolvency practitioner will become office holder; as liquidator or as administrator or as administrative receiver. The office holder requires information as to the company's trading and transactions which is sufficient to enable him to identify and recover or exploit the company's assets. His task is made extremely difficult, if not impossible, if the company has failed to comply with its obligations under s 221 of the 1985 Act."
Company Directors Disqualification Act 1986 - Companies Act 1985 221
1 Citers


 
National Rivers Authority v Stockinger and Others Times, 27 March 1996
27 Mar 1996
ChD

Company
A person was unable to revive a defunct statutory company by a simple assertion of right.

 
Neville and Another v Wilson and Others Times, 04 April 1996; [1997] Ch 14
4 Apr 1996
CA
Lord Justice Nourse, Lord Justice Rose and Lord Justice Aldous
Company, Equity
A parole agreement by all the shareholders in a company, to liquidate it, created a constructive trust. That a specifically enforceable agreement to assign an interest in property, created an equitable interest in the assignee, was unquestionably correct. A trust deed governed by s53(2) is not subject to the requirement to be in writing.
Law of Property Act 1925 53(2)
1 Cites

1 Citers


 
Possfund Custodian Trustee Ltd and Another v Diamond and Others; Parr and Others v Same Etc Times, 18 April 1996
18 Apr 1996
ChD

Company
An Investor had to show that he had relied on and was intended to rely upon the prospectus to have a right to claim.

 
Popely v Planarrive Ltd Times, 24 April 1996
24 Apr 1996
ChD

Company
Directors wide powers in the company's Articles of Association were not challengeable unless acting ultra vires.
Companies Act 1985 359


 
 Lion Nathan Limited and others v C C Bottlers Limited and others; PC 14-May-1996 - Times, 16 May 1996; Gazette, 26 June 1996; [1996] UKPC 9; [1996] 1 WLR 1438

 
 Credit Suisse v Allerdale Borough Council; CA 20-May-1996 - Times, 20 May 1996; [1997] QB 306

 
 In Re Edennote Ltd; Tottenham Hotspur plc v Ryman; CA 21-May-1996 - Times, 03 June 1996; Gazette, 03 July 1996; [1996] 2 BCLC 389
 
Soden and Another v British and Commonwealth Holdings Plc (In Administration) and Another Times, 27 May 1996
27 May 1996
CA

Company
Damages for misrepresentation due to share purchaser not due to him as member.
Insolvency Act 1986 74(2)(f)

 
Secretary of State for Trade and Industry v Davies and Others Times, 07 June 1996
7 Jun 1996
CA

Company
The lack of a good reason for delay was not terminal to a company director disqualification application.
Company Directors Disqualification Act 1986 6
1 Citers


 
In Re Continental Assurance Co of London Plc Gazette, 24 July 1996; Times, 02 July 1996; [1997] 1 BCLC 48
2 Jul 1996
ChD

Company
Gross incompetence as director in not reading the company accounts founded disqualification. The jurisdiction of company director disqualification should not be hedged about with rigid rules which would allow directors to navigate around disqualification applications by taking fine points on the way in which the affidavits have formulated.
Company Directors Disqualification Act 1986 6
1 Citers


 
Soden and Another v Burns; Regina v Secretary of State for Trade and Industry Ex Parte Soden and Another Times, 05 July 1996
5 Jul 1996
QBD

Company
Witness to Department of Trade and Industry on Company affairs to be given notice before evidence released.
Companies Act 1985 432 - Insolvency Act 1986 236

 
Centro Latino Americano De Commercio Exterior Sa v Owners of Ship Kommunar No 2 Times, 09 July 1996
9 Jul 1996
QBD

Company
A privatised company was not same legal entity as its previous unincorporated company despite the transfer of assets to it.

 
Secretary of State for Trade and Industry v Mctigue and Another Times, 10 July 1996
10 Jul 1996
CA

Company
Period of directors disqualification can be set by reference to individual acts.
Company Directors Disqualification Act 1986

 
In Re Duckwari Plc Times, 23 July 1996
23 Jul 1996
ChD

Company
The company had purchased property, but it suffered a fall in value. Held: The fall was irrecoverable despite the fact that it had been purchased from a director, because it had been made at full value.
Companies Act 1985 322(3)(b)
1 Cites

1 Citers


 
London College of Science and Technology Ltd v Islington Borough Council Times, 23 July 1996
23 Jul 1996
QBD

Company
The Act can apply to an educational establishment if it is found that it 'carries on business'.
Business Names Act 1985

 
Oakdale (Richmond) Limited v National Westminster Bank Plc Times, 20 August 1996; [1996] EWCA Civ 568
6 Aug 1996
CA

Company, Banking, European
The plaintiff sought to have the bank's form of debenture deemed anti-competitive under the treaty and void. Held: The bank's security finished when the sums due were repaid. It was not a clog on the equity of redemption. A provision against the freedom to give a second charge was appropriate because the charge was a continuing one securing an overdraft. A second charge would take priority over subsequent advances under the debenture. It was also necessary for the bank to take control of the collection of book debts to avoid that part of the charge being a floating charge. The provisions were reasonable and not anti-competitive. The arguments had no prospect of success and leave to appeal was refused.
EC Treaty 85 86
1 Cites

[ Bailii ]
 
Barings Plc and Another v Coopers and Lybrand (A Firm) and Others Times, 13 August 1996; Gazette, 23 October 1996; [1996] EWCA Civ 1025
13 Aug 1996
ChD

Company, Litigation Practice
The need to reach one conclusion justified service of proceedings overseas on a firm's partners, where there was a genuine issue to be decided
1 Citers

[ Bailii ]
 
Gilman Securities Ltd v Derbifill Ltd and others [1996] EWCA Civ 589
23 Aug 1996
CA

Company

Companies Act 1985 8459
[ Bailii ]
 
New Hampshire Insurance Company and Others v MGN Ltd and Others [1996] EWHC 398 (Comm)
6 Sep 1996
ComC
Staughton, McGowan, Auld LJJ
Company

[ Bailii ]
 
Mcgladdery v Mcgladdery [1996] EWCA Civ 613
26 Sep 1996
CA

Family, Company
Implementation of ancillary relief order for transfer of shares in family company.
1 Cites

1 Citers



 
 The New Hampshire Insurance Company v Rush and Tompkins Group Plc, Rush and Tompkins International Limited; CA 3-Oct-1996 - [1996] EWCA Civ 634
 
Klein and Klein v Jeffcoat and Jeffcoat [1996] EWCA Civ 686
9 Oct 1996
CA

Company

[ Bailii ]
 
Mutual Reinsurance Co Ltd v Peat Marwick Mitchell and Co and Another Times, 15 October 1996; [1996] EWCA Civ 704
15 Oct 1996
CA

Company, Professional Negligence
Accountants' appointment as auditors made them officers and protected as such.
[ Bailii ]
 
Denkavit International and others v Bundesamt fur Finanzen [1996] ECR I -5063; C-283/94; [1996] EUECJ C-283/94
17 Oct 1996
ECJ
JC Moitinho de Almeida, P
European, Company
LMA The case concerned an incorrect implementation by Germany of a Directive on the taxation of parent companies and subsidiaries in different States, which allegedly caused loss to the plaintiff's company. Held: (does decision turn on discretion on implementation) Germany's breach did not amount to a sufficiently serious breach. Almost all of the other MS had adopted the same interpretation.
ECJ 1. By authorizing Member States to grant exemption from withholding tax upon distribution of profits by a subsidiary to its parent company holding at least 25% of the subsidiary' s capital, provided for by Article 5(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, only in so far as the parent company maintains that minimum holding for a period which Member States are free to lay down but which cannot exceed two years, Article 3(2) of Directive 90/435 introduces an option to derogate from the obligation to grant the exemption which, as such, must be strictly interpreted. It cannot therefore be interpreted as authorizing a Member State to make that exemption subject to the condition that, at the moment when the profits are distributed, the parent company should have had the required holding in the capital of its subsidiary for a period at least equal to that which the Member State has laid down pursuant to the option which it is recognized as having.
It is for Member States to draw up rules for ensuring compliance with this minimum period, in accordance with the procedures laid down in their domestic law. On no view are those States obliged under the directive to grant the advantage immediately on the basis of a unilateral undertaking by the parent company to observe the minimum holding period. That being so, Community law does not require a Member State which, when transposing that directive into its national law, stipulated that the minimum holding period set pursuant to Article 3(2) must be completed at the time when the profits that are the subject of the tax advantage afforded by Article 5 are distributed, to compensate the parent company for damage which it may have incurred by reason of the error thus made.
The conditions required for a breach of Community law by a Member State, on the occasion of the legislative activity involving a margin of discretion consisting in the transposition of a directive, to give rise to an obligation on that Member State to compensate individuals for damage which they have incurred are not satisfied in this case. There is, in any event, no sufficiently serious breach of Community law if it appears, inter alia, that the Member State' s interpretation of the directive corresponds to that of almost all the other Member States which have exercised the option to derogate.
2. Article 5(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States clearly and unambiguously provides that a parent company holding a minimum of 25% of the capital of its subsidiary is to be exempt from withholding tax.
While it is true that Article 3(2) of the directive gives Member States the option of derogating from that principle where the parent company does not maintain its holding in the subsidiary for a minimum period and gives those States latitude as regards both the duration of that period, which may not exceed two years, and the administrative procedures applicable, this does not make it impossible to determine minimum rights on the basis of the provisions of principle contained in Article 5 of the directive. It follows that, where a Member State has exercised the option provided for in Article 3(2) of the directive, parent companies may, provided that they comply with the obligation to maintain their holding for the period set by that Member State, rely directly on the rights conferred by Article 5(1) and (3) of that directive before national courts.
3. Individuals injured by a breach of Community law attributable to a Member State are recognized as having a right to reparation when three conditions are met: the rule infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage suffered by the injured parties. Those conditions apply where a Member State incorrectly transposes a Community directive into national law. In this regard, a breach is sufficiently serious if a Community institution or a Member State, in the exercise of its rule-making powers, manifestly and gravely disregards the limits on those powers. One of the factors that may be taken into consideration is the clarity and precision of the rule breached.
[ Bailii ]
 
Re NP Engineering and Security Products Ltd; Official Receiver and Another v Pafundo and Another [1996] EWCA Civ 782; [1998] 1 BCLC 208
22 Oct 1996
CA
Simon Brown, Waite, Morritt LJ
Litigation Practice, Company, Insolvency
The official receiver began director disqualification proceedings, but before the proceedings commenced, the company was wound up. Where, on an application for the disqualification of a director, the official receiver and the Secretary of State became aware that the company had in fact already been dissolved, the normal course would be to transfer the proceedings from the County Court to the High Court and to substitute the Secretary of State as applicant in the place of the official receiver.
The court gave guidance on the application of section 42(1)(b) of the 1984 Act, saying: "provided proceedings are started within the time permitted by the statute of limitations, are not frivolous, vexatious or an abuse of the process of the court and disclose a cause of action, they will not as a rule be struck out because of some mistake in procedure on the part of the plaintiff or his advisers . . No injustice is involved to the defendant in transferring an action which has been started in the wrong court to the correct court."
County Courts Act 1984 40 42(1)(b) - Company Directors Disqualification Act 1986 6 - Insolvency Act 1986 205(2)
1 Cites

1 Citers

[ Bailii ]
 
Viho v Commission [1996] ECR I-5457; C-73/95; [1996] EUECJ C-73/95P
24 Oct 1996
ECJ

European, Company

1 Citers

[ Bailii ]

 
 Prentice and Another v Scottish Power Plc; OHCS 28-Oct-1996 - Times, 28 October 1996
 
Robertson v Banham and Co (a Firm) Gazette, 05 February 1997; Gazette, 29 January 1997; Gazette, 22 January 1997; Times, 26 November 1996; [1996] EWCA Civ 860
31 Oct 1996
CA

Litigation Practice, Company
The service of a writ on a professional person at his last known business address was proper.
Rules of the Supreme Court 10 1(2)(b) 83(3) - County Court Rules 1981 3(1)(a)
[ Bailii ]

 
 Independent Pension Trustee Ltd v L A W Construction Co Ltd and Others; OHCS 1-Nov-1996 - Times, 01 November 1996
 
In Re P S Banarse and Co Times, 01 November 1996
1 Nov 1996
ChD

Company
Agreed statement of facts must not allow ambiguity as to secondary inference.
Company Directors Disqualification Act 1985

 
Lucky Miah, Abdul Ahad, Khasru Miah v Muhit Khan [1996] EWCA Civ 884
6 Nov 1996
CA

Company
The defendants wished to appeal an order that there had been a partnership, of which certain property formed part, and sought a stay pending the appeal. This appeal appeared to be a request to interfere with the case management decisions made in the court below. As such it was to be refused.
1 Cites

1 Citers

[ Bailii ]
 
Banner Lane Realisations Limited (In Liquidation) v Berisford Plc and Another [1996] EWCA Civ 953
14 Nov 1996
CA

Company, Banking

[ Bailii ]

 
 Hamilton, Mills and Bloom v Internationale Nederlanden Groep Nv Baring Brothers Limited; CA 21-Nov-1996 - [1996] EWCA Civ 1020

 
 Smith New Court Securities Ltd v Scrimgeour Vickers; HL 21-Nov-1996 - Gazette, 13 December 1996; Times, 22 November 1996; [1996] UKHL 3; [1997] AC 254; [1996] 4 All ER 769; [1996] 3 WLR 1051
 
Regina v Secretary of State for Home Department ex parte Mehmet Arif [1996] EWHC Admin 301
29 Nov 1996
Admn

Company

[ Bailii ]
 
In Re A Company No 004803 of 1996 Times, 02 December 1996
2 Dec 1996
ChD
hadwick J
Company
T was the company's bookkeeper. He was also a director but with only a small shareholding. The company fell into difficulties. He recommended economies to the other directors which were not accepted, but then he stayed on in office. The court had disqualified the other directors but not him. The Secretary of State appealed. Held: The appeal failed. The judge had properly allowed for the relevant factors, including that if his recommendations had been accepted the insolvency might well have been avoided, and that he stood to gain only a limited amount by continuing trading. The judge had found that he had not continued solely to ensure contination of his director's fees. There was no reason to interfere with his decision.
Directors Disqualification Act 1986 6(1)(b)

 
Carr and others v Lavin and others [1996] EWCA Civ 1113
5 Dec 1996
CA

Company

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 Williams; Reid v Natural Life Health Foods Limited and Mistlin; CA 5-Dec-1996 - Times, 09 January 1997; [1996] EWCA Civ 1110; [1997] 1 BCLC 131
 
Practice Direction (Companies Court: Schemes and Reductions) Times, 05 December 1996
5 Dec 1996
ChD

Company
Petitions to sanction schemes of reduction of capital to be heard by judge.

 
John Magee v M Kirkham P Grace [1996] EWCA Civ 1210
13 Dec 1996
CA
Judge LJ
Company

[ Bailii ]
 
Culverden Retirement Village Limited v The Registrar of Companies [1996] UKPC 50
16 Dec 1996
PC

Commonwealth, Company
(New Zealand)
[ Bailii ]

 
 Saunders v The United Kingdom; ECHR 17-Dec-1996 - Times, 18 December 1996; 19187/91; [1997] 23 EHRR 313; 1996-VI; [1998] 1 BCLC 362; [1996] ECHR 65
 
Alipour v UOC Corporation; Golam Reza Alipour v Fereshteh Ary and Alexander Schweininger Times, 18 December 1996; [1996] EWCA Civ 1229; [1997] 2 BCLC 770; [1997] 1 WLR 534
17 Dec 1996
CA
McGowan LJ, Sir Peter Gibson, Hutchison LJ
Insolvency, Company
The petitioner appealed against rejection of his contributor's winding up petition. Held: The Companies court was the appropriate place to determine a dispute on winding up petition. A dispute on locus standi can be dealt with in the winding-up proceedings without necessitating a stay of the petition, provided that the petition is not likely to cause substantial damage or inconvenience to the company.
1 Cites

1 Citers

[ Bailii ]
 
Ernst and Young (a Firm) v Butte Mining Plc [1996] EWCA Civ 1243
18 Dec 1996
CA

Company

Companies Act 1985 726
[ Bailii ]
 
Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd (Formerly Stc Submarine Systems Ltd) [1996] EWCA Civ 1286
20 Dec 1996
CA
Lord Justice Stuart-Smith Lord Justice Ward And Lord Justice Hutchison
Contract, Company

1 Cites

1 Citers

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