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.
Independent 11-Aug-1995, Times 26-Jul-1995
Company Directors Disqualification Act 1986
England and Wales
Updated: 21 January 2023; Ref: scu.89121
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.’
Staughton LJ
Times 22-Jun-1995, [1995] 1 BCLC 578
Company Directors Disqualification Act 1986
England and Wales
Appeal from – In Re Manlon Trading Ltd ChD 15-Aug-1994
A different approach is required on striking out in Company Director Disqualification proceedings. . .
Cited – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Cited – Secretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .
Lists of cited by and citing cases may be incomplete.
Updated: 21 January 2023; Ref: scu.82043
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.
Independent 25-Aug-1995, Times 10-Aug-1995, Gazette 13-Sep-1995
England and Wales
Updated: 20 December 2022; Ref: scu.78188
Three solicitors were in partnership. It was agreed that one would retire. He would take 10,000 pounds on retirement and his share of undrawn profits after an account had been taken. When the accountant certified the profits in line with previous partnership practice, the other partners objected to the sum payable, saying undrawn profits had been appropriated for the purchase of capital assets. New accounts were drawn reflecting this. The retiring partner objected to the result, saying the accountant had already given his certificate under the agreement, and sought a declaration as to what sum was payable. The other partners said that the accountant having given his certificate, the court had no jurisdiction to make any order.
Held: There had been no agreement for the second certificate, and the retiring partner was not bound by it. The court had full jurisdiction to make the declaration sought, and would exercise its discretion to make it in order to avoid leaving the retiring partner with no relief without a new certificate. There was no way of restoring the position. Once the error of principle was properly established it would be possible to establish from the draft accounts what sum would properly be certifiable.
Goulding J
[1974] 1 All ER 401, [1974] 1 WLR 9
England and Wales
Cited – Frank H Wright (Contractors) Ltd v Frodoor Ltd 1967
There was an error on the face of the certifcate of an accountant. The court looked at when it might go behind the certificate of an accountant on a question referred to him by agreement of the parties.
Held: In this case the error was . .
Cited – Dean v Prince 1953
An auditor had valued the shares in a private company under its articles. The court was asked to look behind the valuation: ‘In my judgment the valuation cannot stand. I propose, therefore, to declare that the valuation is not binding upon the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.238764
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.’
Evans LJ
Ind Summary 11-Dec-1995, [1996] 2 Lloyd’s Rep 474, [1996] 1 All ER 1017
England and Wales
Affirmed – International Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India ComC 16-Feb-1994
cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder . .
Cited – Adelson and Another v Associated Newspapers Ltd CA 9-Jul-2007
The claimant sought to add the name of a further claimant. The defendant objected, saying that it was after the expiry of the limitation period.
Held: The claimant was seeking to use the rules for substitution of parties to add a party. In . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.82399
Proudman J
[2010] EWHC 577 (Ch), [2010] BCC 463
England and Wales
Updated: 09 December 2022; Ref: scu.421582
It was incontrovertible that ‘the appointment of a receiver operates as an equitable assignment (by way of charge) of the property of the company to the debenture holder.’
Stamp LJ
[1974] 1 WLR 462
England and Wales
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.230293
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Held: The appeal was dismissed: ‘If the shareholders of a company agree to increase its capital without a formal allocation of shares that capital will become like share premium part of the owner’s equity and there is nothing in the company law of the Turks and Caicos Islands or in the company law of England on which that law is based to render their agreement ineffective. ‘
Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Goff of Chieveley, Lord Hutton, Lord Millett
[2000] 2 BCLC 390, [2000] UKPC 4, Appeal No 42 of 1998, [2000] 2 BCLC 390
England and Wales
See Also – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
See also – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Applied – Oyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.174641
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was revealed.
Held: The accountants’ appeal succeeded. As a general rule ‘collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss’ and loss which has been avoided is not recoverable as damages, although expense reasonably incurred in avoiding it may be recoverable as costs of mitigation. To this there is an exception for collateral payments (res inter alios acta), which the law treats as not making good the claimant’s loss. It is difficult to identify a single principle underlying every case. In spite of what the Latin tag might lead one to expect, the critical factor is not the source of the benefit in a third party but its character. Broadly speaking, collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss.
In this case: ‘subrogation is not being invoked for its proper purpose, namely to replicate some element of the transaction which was expected but failed. It is being invoked so as to enable Mr Hunt to exercise for his own benefit the claims of Swynson in respect of an unconnected breach of duty under a different transaction between different parties more than two years earlier.’
Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord, Hodge
[2017] UKSC 32, [2017] 3 All ER 785, [2017] 2 WLR 1161, [2017] 1 CLC 764, [2017] WLR(D) 257, 171 Con LR 75, [2018] AC 313, [2017] PNLR 18, UKSC 2015/0170
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC 2017 Apr 11 Video
England and Wales
Cited – Dunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
Cited – In Re Lee’s Patent PC 16-Jun-1856
. .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Appeal from – Swynson Ltd v Lowick Rose Llp CA 25-Jun-2015
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Parry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
At First Instance – Swynson Ltd and Another v Lowick Rose Llp ChD 30-Jun-2014
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the . .
Cited – Chetwynd v Allen 1899
A lender M advanced pounds 1,200 to pay off an existing mortgage held by T over a property owned by the plaintiff. M made the advance on the basis of certain misleading representations and non-disclosures by the plaintiff’s husband. M was told that . .
Cited – Paul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – London and South of England Building Society v Stone CA 1983
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Edinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – TFL Management Services Ltd v Lloyds Bank Plc CA 14-Nov-2013
The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers . .
Cited – Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.581644
The appellant bank had granted very substantial lending facilities to the defendant companies, and now alleged fraudulent misrepresentation. The defendants now sought to have the service set aside. The claimants also sought permission to amend the pleadings to set aside the veil of incorporation to add three further defendants.
Held: Leave was set aside. The application to amend was refused. The evidence did not establish a real risk of dissipation of assets by the fourth defendant and the original order was tainted by material non-disclosure by the claimant to the court.
Arnold J
[2011] EWHC 3107 (Ch)
England and Wales
At First Instance – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Appeal from – VTB Capital Plc v Nutritek International Corp and Others CA 20-Jun-2012
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.449025
Need for evidence of bad faith before costs award against directors.
Gazette 17-Mar-1993
England and Wales
Updated: 26 November 2022; Ref: scu.85809
A company director may be disqualified on wider ground than merely for specific contraventions within any list, including having given a preference to a creditor bank.
Times 16-May-1997, Gazette 21-May-1997
Company Directors Disqualification Act 1985 9(8)
England and Wales
Updated: 25 November 2022; Ref: scu.89144
The Secretary of State presented a petition for the winding-up of Hawkhurst Capital PLC on public interest grounds.
Hodge QC HHJ
[2013] EWHC 4219 (Ch)
England and Wales
Updated: 20 November 2022; Ref: scu.520874
The claimant sought damages for breach of a company share sale agreement. The seller had given a warranty that it was not involved in any undisclosed litigation. An anti-trust investigation had been begun in the US.
Held: In this case the seller could not demonstrate that it had complied with its own obligations under the warranties, and was therefore precluded from itself relying upon other provisions within the contract.
[2003] EWHC 2540 (Comm)
England and Wales
Mentioned – A/S Rendal v Arcos Ltd HL 1937
. .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd (Formerly STC Submarine Systems Ltd) CA 22-Jun-1998
Where damages were to be awarded for breach of warranty on sale of goodwill, an assessment according to a price earnings ratio was appropriate only if used in the contract or agreed as appropriate by the experts. In the context of a notice clause in . .
Mentioned – Odebrecht Oil and Gas Services Ltd v North Sea Production Co Ltd ChD 10-May-1999
. .
Cited – Forrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.187335
Hildyard J
[2013] EWHC 680 (Ch), [2013] Lloyd’s Rep FC 351
Company Directors Disqualification Act 1986 6
England and Wales
Updated: 14 November 2022; Ref: scu.472045
Statements made under compulsion could be used in disqualification proceedings at discretion of the Secretary of State.
Gazette 01-Apr-1998, Times 10-Feb-1998, Gazette 11-Mar-1998
Company Directors Disqualification Act 1985
England and Wales
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.87954
The court was asked: ‘a) Does the doctrine of marshalling permit the marshalling of securities held over property that does not belong to the common debtor? In particular, is a creditor of a guarantor entitled to marshal (or be subrogated to) securities which have been granted to another creditor of the guarantor by the primary debtor liable under the guaranteed debt?
b) Does the answer depend in any way on the rights which the guarantor has as against the holder of the guarantee or as against the primary debtor?
c) Does any such claim to marshalling or subrogation take precedence over prohibitions contained in the Restraint Order, either as of right or by virtue of the exercise of some discretion of the Crown Court?’
Held: The equitable principle applied. Lady Morrison may claim the proceeds of the assets subject to the Agricultural Charge by the application of the principle of marshalling, and is entitled to prove as an unsecured creditor in the administration for any shortfall.
Norris J said: ‘The principle of marshalling is an equitable principle. In its classic form it applies where two creditors are owed debts by the same debtor, one of whom can enforce his claim against more than one security but the other can resort to only one. In those circumstances the principle gives the second creditor a right in equity to require that the first creditor be treated as having satisfied himself as far as possible out of the security to which the latter has no claim.’
Norris J
[2013] EWHC 238 (Ch), [2013] WLR(D) 71, [2014] 2 WLR 1129, [2014] 1 CH 359
Agricultural Credits Act 1928, Partnership Act 1890 39
England and Wales
Cited – Highbury Pension Fund Management Company and Another v Zirfin Investments Management Ltd and Others CA 3-Oct-2013
Lewison LJ discussed the operation of the principle of marshalling: ‘One consequence of the application of the principle is that if the first mortgagee with more than one security satisfies his debt out of the property over which the second . .
Cited – In Re Ritson ChD 1898
. .
Cited – In Re Ritson, Ritson v Ritson CA 1899
The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.470996
A was one of two directors of a company. The co-director gave notice to call an extraordinary meeting at which it was proposed that A would be dismissed as a director. A applied to court for an injunction to prevent this, on the grounds that it would cause him irremediable damage. The co-director responded that the court had no power under this section to do so. The judge held that in this case A’s prospects of success were very low, but that the power did exist, and could be exercised in an appropriate case. That would require a reasonable prospect of success, and that an injunction would maintain the status quo, or prevent the substantive action becoming nugatory.
Times 05-Jun-2001, Gazette 07-Jun-2001
England and Wales
Updated: 10 November 2022; Ref: scu.82305
The Secretary of State sought company director disqualification orders. The defendants challenged the administrative receivership, saying that the appointment of the administrative receiver was invalid, and hence that the conditions of section 6 were not satisfied and the Secretary of State was not entitled to rely on the section as the basis for the disqualification proceedings.
Held: Neither the company nor the appointor was party to the proceedings. It was not appropriate to challenge a debenture over company assets in director disqualification proceedings many years later.
Millett LJ: ‘So it comes about that we are asked to pronounce upon the conditional or unconditional nature of a debenture and guarantee and the validity of an appointment of an administrative receiver in proceedings to which neither the company which granted the debenture, nor the bank to which it was granted, nor even the administrative receiver whose appointment is challenged, are made parties. In my judgment the proceedings are completely misconceived. If the debenture and guarantee were indeed conditional and the condition was not satisfied, or if the appointment of the administrative receiver was invalid, then McIvor could have brought proceedings against the bank to have the appointment declared void. Despite the passage of more than five years since the administrative receiver was appointed, McIvor has never challenged the appointment. The administrative receivership is long since spent. The assets of McIvor have been distributed, no doubt to the prejudice of the unsecured creditors and to the advantage of the bank. The appellants, who remained directors of McIvor . . never took any steps either to replace themselves as directors of McIvor or to procure McIvor to bring proceedings to challenge the appointment of the administrative receiver. They themselves never had any standing to challenge the appointment even in proceedings properly constituted against the bank. But they seek to do so now in their own right as directors or former directors of McIvor and not as creditors, in the absence of McIvor and in proceedings brought by the Secretary of State to which the bank is not a party. In my judgment they have no standing to do so.’
Millett LJ
Times 05-Aug-1997, Gazette 17-Sep-1997, [1997] EWCA Civ 2162
Company Directors Disqualification Act 1986
England and Wales
Cited – Cabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – Re Kaytech International plc; Secretary of State for Trade and Industry v Kaczer and others CA 1999
Robert Walker LJ said that the expression ‘de facto director’ had been in use for a long time, and commented on the failure to distinguish in pleadings between pleas that someone was a shadow or a de facto director. The two different labels were not . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.89139
The court’s power to order a company meeting to be held is not to be construed so as to allow court to break a deadlock artificially by resolving an impasse between equal shareholders.
Times 04-Jul-1997, Gazette 16-Jul-1997
England and Wales
Updated: 06 November 2022; Ref: scu.88870
Application inviting the court to convene a meeting of one class of creditors
Mann J
[2013] EWHC 4605 (Ch)
England and Wales
Updated: 04 November 2022; Ref: scu.522669
A company was criminally liable for the acts of its employees which had been carried out within the normal course of their employment.
Times 03-Feb-1994, Independent 03-Feb-1994, [1994] 4 All ER 286
England and Wales
Updated: 04 November 2022; Ref: scu.84187
Accountants’ appointment as auditors made them officers and protected as such.
Times 15-Oct-1996, [1996] EWCA Civ 704
England and Wales
Updated: 31 October 2022; Ref: scu.84144
The lack of a good reason for delay was not terminal to a company director disqualification application.
Times 07-Jun-1996
Company Directors Disqualification Act 1986 6
England and Wales
Cited – Davies v The United Kingdom ECHR 16-Jul-2002
The applicant had been subject to applications for his disqualification from acting as a company director. The Secretary of State waited until the last day before issuing proceedings, and the proceedings were then delayed another three years pending . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 October 2022; Ref: scu.89131
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.
Lord Justice Nourse, Lord Justice Rose and Lord Justice Aldous
Times 04-Apr-1996, [1997] Ch 14
Law of Property Act 1925 53(2)
England and Wales
Cited – London and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
Cited – Slater v Simm ChD 27-Apr-2007
The deceased and her partner did not marry but owned three properties together. They could not agree on the interpretation of the documents setting out their interests, and whether they had been varied.
Held: The court set out the various . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 October 2022; Ref: scu.84261
Period of directors disqualification can be set by reference to individual acts.
Times 10-Jul-1996
Company Directors Disqualification Act 1986
England and Wales
Updated: 31 October 2022; Ref: scu.89141
Disqualification depends on conduct of director at insolvency not hearing.
Times 24-Nov-1994
Company Directors Disqualification Act 1986 6(1)
England and Wales
Updated: 27 October 2022; Ref: scu.89085
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.
Ind Summary 12-Dec-1994, Gazette 05-Jan-1995
Company Directors Disqualification Act 1986 6(1)
England and Wales
Updated: 27 October 2022; Ref: scu.89134
Transfer of shares can be supported by payment of salary in return by company.
Times 08-Feb-1996
England and Wales
Updated: 27 October 2022; Ref: scu.84586
Advertisement of petition was restrained where it was of a solvent company for public interest purposes.
Gazette 22-Feb-1995
England and Wales
Updated: 27 October 2022; Ref: scu.81812
Use of company as cloak for crime allowed the sale of its assets even though director charged.
Gazette 20-Mar-1996
England and Wales
Updated: 27 October 2022; Ref: scu.81236
A Civil Court cannot stop the Serious Fraud Office using evidence which had been gathered under compulsion during Insolvency interviews under s236. Any element of confidentiality was overriden.
Independent 08-Apr-1993, Gazette 09-Jun-1993
Criminal Justice Act 1987 2(8) 3, Insolvency Act 1986 236
England and Wales
Appeal from – Re Arrows Ltd (In Liquidation) Chd 1-Jul-1992
Liquidators seeking information from directors were allowed to undertake not to disclose any information gathered to the Serious Fraud Office. Such an undertaking having been given a former company director was not able to refuse to answer questions . .
Appeal from – Re Arrows Ltd No 4 HL 1995
The Court of Appeal had allowed an appeal from the judge who had directed that the transcripts of examinations of a director of an insolvent company under section 236 on the Director of the Serious Fraud Office undertaking that the transcripts would . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.85711
The omission of the amount of consideration does not invalidate a share transfer document.
Ind Summary 19-Jul-1993, Times 01-Jul-1993
England and Wales
Updated: 26 October 2022; Ref: scu.84307
Shares in Business Expansion Scheme were not to be treated as issued until they were entered in the company’s share register. The scheme was ineffective being a scheme to avoid Income Tax by financial manipulation.
Gazette 16-Mar-1994, Times 10-Jan-1994, Ind Summary 24-Jan-1994
England and Wales
Appeal from – National Westminster Bank Plc and Another and Barclays Bank Plc and Another v Inland Revenue Commissioners ChD 6-Aug-1993
A business expansion tax plan was valid if it was issued before the Income and Corporation Taxes Act. Shares were issued on the sending of the allotment letter, not when the shares came to be registered in the company’s books. . .
Appealed to – National Westminster Bank Plc and Another and Barclays Bank Plc and Another v Inland Revenue Commissioners ChD 6-Aug-1993
A business expansion tax plan was valid if it was issued before the Income and Corporation Taxes Act. Shares were issued on the sending of the allotment letter, not when the shares came to be registered in the company’s books. . .
Appeal from – National Westminster Bank Plc and Another v Inland Revenue Commissioners HL 24-Jun-1994
Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.84209
An employer was not liable for its employee’s action in contempt of court against the company’s clear instructions with regard to anti-competitive agreements.
Times 08-Jul-1993, Independent 14-Jul-1993
England and Wales
See Also – Director General of Fair Trading v Smiths Concrete: re Supply of Ready Mixed Concrete 1992
For a person to be found in contempt of a court order it is necessary to show that that he knew of the relevant order and with that knowledge he intended to do the act which amounted to a breach of the court order. It is not necessary to show that . .
Appeal from – Director General of Fair Trading v Pioneer Concrete (UK) Ltd, sub nom Supply of Ready Mixed Concrete (No 2) HL 25-Nov-1994
The actions of company employees, acting in the course of their employment and in contempt may put the company employer in contempt also, and even though the company may have given explicit instructions that no infringing agreement should be entered . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.82208
An oral trust of part of a shareholding was not void because the shares were indistinguishable.
Gazette 23-Feb-1994, Times 14-Jan-1994
England and Wales
Updated: 26 October 2022; Ref: scu.81549
A company director may set off his own deposits against guarantees he has given for an insolvent company.
Independent 06-Apr-1993
England and Wales
Updated: 26 October 2022; Ref: scu.81366
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.’
Peter Gibson LJ
Ind Summary 15-Aug-1994, [1995] 1 BCLC 243
England and Wales
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.78250
The Act was not solely punitive in its nature. The intention was, in addition, to provide protection to the public and other traders from the defendants activities. This meant that there need be no mathematical link between the length of any custodial sentence, and the length of any ban from acting as a company director.
Times 16-Nov-1999
Company Directors Disqualification Act 1986
England and Wales
Updated: 25 October 2022; Ref: scu.85249
The court considered the application of section 21 of the 1980 Act to a claim against a company director for breach of fiduciary duty.
Patten, Kitchin, Briggs LJJ
[2017] EWCA Civ 186, [2017] WLR(D) 232, [2017] 3 WLR 896, [2018] Ch 25
England and Wales
Updated: 24 October 2022; Ref: scu.581338
The respondent Bain was a director of a number of connected companies, including Smarturgent and Pantone, both of which he indirectly controlled. The liquidator of both companies brought proceedings against Bain on a number of claims for breach of duty as a director, including that he had caused Smarturgent to spend a total of over andpound;86,000 for the benefit of Pantone. It was argued on behalf of Bain that this claim was time-barred, but the liquidator relied on section 21(1)(b).
Held: Field QC responded to the submission saying: ‘The claim against Mr Bain is not that he transferred Smarturgent’s money to himself but that he caused the company’s money to be spent not for Smarturgent’s benefit but for Pantone’s. Mr Shaw submitted that the fact that the machine was acquired and the rentals paid for the benefit of Pantone, a company in which Mr Bain had an indirect controlling interest through his shareholding in AS2 meant that he was to be regarded as having received the trust property . . In my judgment, as a matter of basic principle where a fiduciary uses his beneficiary’s money to confer a benefit on a company he controls he is denying the beneficiary’s title to the money for his own purposes and this amounts to a conversion for his own use. The same is true where a fiduciary causes his beneficiary to incur a liability for the benefit of a company which the fiduciary controls. Since this is what the applicant is in substance alleging under the MOVP claim, I hold that this claim is within section 21(1)(b) of the Limitation Act and is therefore not statute barred.’
Richard Field QC HHJ
[2001] EWHC 705 (Ch), [2002] 1 BCLC 266, [2001] 2 EGLR 103
England and Wales
Approved – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 October 2022; Ref: scu.372690
Unfair prejudice petition
Arden, Aikens, Kitchin LJJ
[2012] EWCA Civ 998, [2012] WLR(D) 220, [2013] Bus LR 753, [2013] BCC 98, [2013] 2 BCLC 567
England and Wales
Updated: 04 October 2022; Ref: scu.462972
(West Africa)
[1954] UKPC 16, [1954] 1 WLR 681, [1954] 2 All ER 197
Commonwealth
Updated: 22 September 2022; Ref: scu.445880
The parties had been partners developing land. The partnership was dissolved and they disputed whether partially completed developments should be sold in their current condition or completed and then sold.
May Ch
[2011] EWHC 2101 (Ch)
England and Wales
Updated: 17 September 2022; Ref: scu.442580
Rights of holders of preference shares
[1994] UKPC 43
England and Wales
Updated: 17 September 2022; Ref: scu.442405
The defendant appealed against a finding that as a director of the claimant company he had accepted personal benefits from a customer without disclosing this to the company.
Held: The appeal failed.
Mummery, Wilson, Etherton LJJ
[2011] EWCA Civ 923, [2012] IRLR 73, [2012] 1 BCLC 67, [2012] BCC 72
England and Wales
Cited – Aberdeen Railway Co v Blaikie Brothers HL 1854
The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of . .
Cited – Boulting v Association of Cinematograph, Television and Allied Technicians CA 1963
There must be a real conflict and not a theoretical conflict, before a solicitor can be restrained from acting in a matter against a former client. In order to give fully informed consent, the person entitled to the benefit of the rule must: ‘fully . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2022; Ref: scu.442259
Simon Barker QC J
[2011] EWHC 1276 (Ch)
England and Wales
Updated: 13 September 2022; Ref: scu.440138
Claim by company’s liquidator of alleged fraud by former company directors
Arnold J
[2012] EWHC 1447 (Ch)
England and Wales
Updated: 10 September 2022; Ref: scu.460463
Agreements were put in place for the sale of shares, but pre-emption rights would, if triggered have required notices to be serve. Only a contractual provision which created an obligation to transfer shares in breach of the articles would trigger the pre-emption clause, and this agreement expressly forbade any such obligation arising. The obligation to transfer the shares would only arise once the articles had been amended to remove the requirement for pre-emption rights notices.
Gazette 10-Feb-2000, Times 16-Feb-2000
England and Wales
Appeal from – Scotto v Petch and others, In re Sedgefield Steeplechase Co (1927) Ltd CA 9-Feb-2001
The defendants were members of a private limited company holding 75 per cent of its share capital. The applicant held 21 per cent. The articles gave her a right of pre-emption should the defendants wish to sell their shares. The articles exempted . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2022; Ref: scu.82188
The court was asked as to the validity of bonus shares issued, paid up by appropriating a sum in the share premium account, by EIC Services Limited.
Neuberger J
[2003] EWHC 1507 (Ch)
England and Wales
Updated: 06 September 2022; Ref: scu.431761
Flaux J
[2008] EWHC 322 (Comm)
England and Wales
Cited – Nottingham Building Society v Eurodynamics Systems plc 1993
The court laid down tests for the granting of mandatory interim injunctions. The court should consider whether there was a high degree of confidence that the applicant would succeed in establishing his right at trial. The higher that confidence, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.431654
The parties disputed the beneficial ownership of shareholdings.
David Cooke J
[2011] EWHC 672 (Ch)
England and Wales
Updated: 04 September 2022; Ref: scu.431283
The respective parties each sought orders requiring their opponent the co-shareholders to buy them out.
[2011] EWHC 635 (Ch)
England and Wales
Updated: 04 September 2022; Ref: scu.430828
The court was asked to construe the provisions of a shareholders agreement as to the valuation of shares.
Marurice Kay VP, Thomas P, Etherton LJJ
[2011] EWCA Civ 60
England and Wales
Updated: 01 September 2022; Ref: scu.428519
Appeal against mortgagee’s possession order.
Maurice Kay, Thomas, Etherton LJJ
[2011] EWCA Civ 51
England and Wales
Updated: 01 September 2022; Ref: scu.428518
Appeal against findings in dispute over shareholder agreement.
[2011] EWCA Civ 15
England and Wales
Updated: 31 August 2022; Ref: scu.428063
ECJ Free movement of capital – Freedom of establishment – National legislation imposing a differentiated dividends from subsidiaries located in the State of residence of the parent and those established in other Member States – Refusal to refund the advance payment paid by the parent company – Unjust enrichment – Repayment of amounts paid by the parent company subject to the production of evidence relating to the tax paid by its subsidiaries in a Member State other than the registered office of the parent company – Burden of Evidence – Principles of equivalence and effectiveness.
C-310/09, [2010] EUECJ C-310/09, [2011] EUECJ C-310/09
European
Updated: 31 August 2022; Ref: scu.427660
[2010] EWHC 3334 (Ch)
England and Wales
Updated: 31 August 2022; Ref: scu.427402
Newey J
[2010] EWHC 3175 (Ch)
Company Directors Disqualification Act 1986
England and Wales
Updated: 28 August 2022; Ref: scu.426852
An Inspector’s side letter to his report to the Secretary of State about a recommendation not to disqualify was admissible in disqualification proceedings.
Times 13-Jan-1998
Company Directors Disqualification Act 1986
England and Wales
Updated: 27 August 2022; Ref: scu.89111
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.’
Times 25-Mar-1996, [1997] 1 BCLC 34
Company Directors Disqualification Act 1986, Companies Act 1985 221
England and Wales
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 August 2022; Ref: scu.89112
The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
Held: (Lords Lyndhurst and Wynford dissenting) The contract could not be rescinded. There was no sufficient evidence of fraud, and because the plaintiffs had tested the re-assurances given and then relied upon that testing.
[1838] UKHL J14, 7 ER 684, [1838] UKHL J60
England and Wales
See Also – Attwood v Small And Others 8-Nov-1827
. .
See Also – Attwood v Small And Others 9-Aug-1827
An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
Held: That although with the clause referred . .
See Also – Attwood v Small 12-Dec-1827
Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
See Also – Small And Others v Attwood And Others 3-May-1828
Amendment of pleadings . .
Cited – Small And Others v Attwood And Others 1-Nov-1832
Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and . .
At HL – Attwood v Small etc 22-Mar-1838
. .
See Also – Attwood v Small 1840
. .
Lists of cited by and citing cases may be incomplete.
Updated: 27 August 2022; Ref: scu.426444
Lewison J
[2010] EWHC 2767 (Ch)
England and Wales
Updated: 26 August 2022; Ref: scu.425804
The company challenged the respondents rules for taxation of foreign dividends, saying that the rules contravened European Law in the fundamental freedoms of establishment and movement of capital.
Henderson J
[2010] EWHC 2811 (Ch)
England and Wales
Updated: 26 August 2022; Ref: scu.425785
A claimant sought an order for disclosure of documents by a third party bank, SCB. The company wished to allege that former directors had misappropriated a business opportunity for their own private purposes.
Morgan J
[2010] EWHC 2647 (Ch)
England and Wales
Updated: 25 August 2022; Ref: scu.425383
[2010] EWCA Civ 1108
England and Wales
Updated: 25 August 2022; Ref: scu.425250
(Singapore) Action for account between legal personal representative of a deceased partner and a surviving partner.
[1916] UKPC 79
England and Wales
Updated: 24 August 2022; Ref: scu.423656
Europa (Law Relating To Undertakings) Failure to fulfill obligations – Directive 2006/46/EC – Corporate – Annual accounts and consolidated accounts of companies – Failure to transpose or to notify measures transposing.
[2010] EUECJ C-6/10
European
Updated: 23 August 2022; Ref: scu.422129
(Egypt) Disapproving the trial judge’s reliance on ‘surrounding circumstances at the time when the memorandum was framed’, Lord Macmillan said that ‘the purpose of the memorandum is to enable shareholders, creditors and those who deal with the company to know what is its permitted range of enterprise, and for this information they are entitled to rely on the constituent documents of the company’ and that the ‘intention of the framers of the memorandum must be gathered from the language in which they have chosen to express it’.
Lord MacMillan
[1931] UKPC 47, [1931] AC 677
Commonwealth
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2022; Ref: scu.421675
[2010] ScotCS CSOH – 87
Scotland
Updated: 21 August 2022; Ref: scu.420863
For several years, the company had paid dividends drawn against false accounts, and paid them to the directirs as shareholders. When in insolvent liquidation, the copany sued thosee directors for the return of all the dividends wrongly paid out.
Held: Sir George Jessel MR and Brett LJ held unequivocally that the dividends were recoverable in full, and would have been even had the company remained solvent.
Cotton LJ drew a distinction, saying: ‘The corporation is not the mere aggregate of shareholders. If the corporation were suing for the purpose of paying over again to the shareholders what the shareholders had already received the Court would not allow it. But that is not the case here, the company is insolvent, and there is no objection to allowing it to get back its funds for the purpose of paying debts. The case of the liquidator is stronger, for in some respects he, as a quasi trustee for creditors as well as shareholders, stands in a different position from the company. But I rely on this, that the money was not paid to the corporation, but was paid improperly to individuals, and the corporation can sue the directors to get it back that it may be applied in payment of the debts of the corporation.’
Sir George Jessel MR said: ‘A limited company by its memorandum of association declares that its capital is to be applied for the purposes of the business. It cannot reduce its capital except in the manner and with the safeguards provided by statute . . There is a statement that the capital shall be applied for the purposes of the business, and on the faith of that statement, which is sometimes said to be an implied contract with creditors, people dealing with the company give it credit. The creditor has no debtor but that impalpable thing the corporation, which has no property except the assets of the business. The creditor, therefore, I may say, gives credit to that capital, gives credit to the company on the faith of the representation that the capital shall be applied only for the purposes of the business, and he has therefore a right to say that the corporation shall keep its capital and not return it to the shareholders, though it may be a right which he cannot enforce otherwise than by a winding-up order.’
Cotton LJ, Sir George Jessel MR and Brett LJ
(1882) 21 Ch D 519
England and Wales
Cited – Holland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2022; Ref: scu.467093
(Ontario)
[1901] UKPC 49, [1902] AC 83
Updated: 20 August 2022; Ref: scu.419409
Application for leave to continue derviative action for company.
Roth J
[2010] EWHC 1539 (Ch)
England and Wales
Updated: 19 August 2022; Ref: scu.418457
Appeal by the purchaser of a group of companies against the rejection of its claim for damages for breach of warranty.
[2010] EWCA Civ 697, [2010] 1 CLC 1035
England and Wales
Updated: 19 August 2022; Ref: scu.417084
The landlord asserted that a tenancy should not be renewed and claimed to have held the freehold for more than 5 years.
Held: The Landlord had only become the reversioner to the lease after accepting a surrender of the head lease. The Act referred to the landlord having purchased his interest. That had not happened, and he was entitled to rely upon ground 30(1)(g).
The court considered the nature of a company. Lord Denning LJ said: ‘A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such. So you will find that in cases where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. That is made clear in Lord Haldane’s speech in Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co. Ltd. So also in the criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company itself guilty. That is shown by Rex v I.C.R. Haulage Ltd., to which we referred and in which the court said:
‘Whether in any particular case there is evidence to go to a jury that the criminal act of an agent, including his state of mind, intention, knowledge or belief is the act of the company . . must depend on the nature of the charge, the relative position of the officer or agent, and the other relevant facts and circumstances of the case.’
So here, the intention of the company can be derived from the intention of its officers and agents. Whether their intention is the company’s intention depends on the nature of the matter under consideration, the relative position of the officer or agent and the other relevant facts and circumstances of the case.’
Denning LJ
[1957] 1 QB 159, [1956] 3 All ER 624
England and Wales
Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
Cited – KR and others v Royal and Sun Alliance Plc CA 3-Nov-2006
The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The . .
Cited – Willis v Association of Universities of the British Commonwealth CA 1965
The landlord resisted renewal of the business tenancy saying that he intended to occupy the premises himself. The Court was asked whether the landlord could show the necessary intention under section 30(1)(g) where it intended to occupy the premises . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2022; Ref: scu.216668
Shareholders sought relief for unfairly prejudicial conduct by the majority shareholder.
David Richards J
[2010] EWHC 230 (Ch)
England and Wales
See Also – Re Woven Rugs Ltd ChD 2002
. .
Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2022; Ref: scu.401799
The parties disputed the continuance of the appointment of a director of the company.
Newey J
[2010] EWHC 244 (Ch), [2010] Bus LR D99, [2010] 2 BCLC 525
England and Wales
Updated: 14 August 2022; Ref: scu.396771
Norris J
[2010] EWHC 19 (Ch)
England and Wales
Updated: 13 August 2022; Ref: scu.392880
[2009] EWHC 3069 (Comm)
England and Wales
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 14-Aug-2009
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 28-Apr-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 16-Dec-2016
. .
See Also – Deutsche Bank Ag v Sebastian Holdings Inc ComC 13-Dec-2017
. .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2022; Ref: scu.381695
Purle QC J
[2009] EWHC 2695 (Ch)
England and Wales
Updated: 04 August 2022; Ref: scu.377351
A company’s mind is not to be assessed on the totality of knowledge of its employees. Malice was not to be established by forensic imagination however eloquently and subtly expressed.
Russell LJ said: ‘the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels.’
Sellers, Davies and Russell L.JJ
[1965] 1 WLR 805
England and Wales
Applied – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Alexander v Arts Council of Wales CA 9-Apr-2001
In a defamation action, where the judge considered that, taken at their highest, the allegations made by the claimant would be insufficient to establish the claim, he could grant summary judgment for the defence. If the judge considered that a . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Telnikoff v Matusevitch HL 14-Nov-1991
The court should decide on whether an article is ‘fact or comment’ purely by reference to the article itself, and not taking into account any of the earlier background coverage. It is the obligation of the relevant commentator to make clear that the . .
Cited – Bray v Deutsche Bank Ag QBD 12-Jun-2008
A former employee of the defendant bank sued in defamation after the bank published a press release about its results which he said was critical of him.
Held: Where there is a real issue as to whether the words are defamatory of the claimant, . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2022; Ref: scu.194318
Lord Glennie
[2009] ScotCS CSOH – 127
Scotland
Updated: 28 July 2022; Ref: scu.374719
In company director disqualification proceedings the person applying for the order could nominate more than one lead company in the proceedings, but he did not have a duty to name all the lead companies.
Times 25-Jan-1999, Gazette 10-Feb-1999
Company Directors Disqualification Act 1986 16(1)
England and Wales
Appeal from – In Re Surrey Leisure Ltd; Official Receiver v Keam and Another CA 28-Jul-1999
An applicant for a company director disqualification order was permitted to name more than one company as the lead company in its application. The Interpretation Act operated to resolve any ambiguity or lack of clarity in favour of an interpretation . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.82209
A company can arrange EGM in breach of requirements to avoid disruption of meeting.
Times 04-Mar-1995
England and Wales
Updated: 25 July 2022; Ref: scu.82233
Norris J
[2011] EWHC 1015 (Ch)
England and Wales
Updated: 25 July 2022; Ref: scu.434879
David Cooke J
[2011] EWHC 971 (Ch)
England and Wales
Updated: 25 July 2022; Ref: scu.434881
In a petition for unfair prejudice in relation to company activities, an application for dismissal for want of authority may not be struck out for delay.
Gazette 26-Feb-1998, Times 27-Feb-1998
England and Wales
Updated: 25 July 2022; Ref: scu.82092
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.
Times 02-Mar-1995, Ind Summary 13-Mar-1995, [1995] 1 BCLC 352, [1996] Ch 274
England and Wales
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2022; Ref: scu.82071
Claim under warranties given in agreement for purchase of entire share capital of a company.
Patten J
[2005] EWHC 644 (Ch)
England and Wales
Updated: 24 July 2022; Ref: scu.441065
Where an ex parte application is made to dismiss a statutory demand clearly wrongly issued the parties should usually expect the judge to order and fix costs on the hearing of the application.
Times 07-Oct-1998
England and Wales
Updated: 24 July 2022; Ref: scu.81641
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.
Chadwick J
Times 02-Dec-1996
Directors Disqualification Act 1986 6(1)(b)
England and Wales
Updated: 24 July 2022; Ref: scu.81645
The director was amongst a group against whom a director disqualification order was sought. He offered an undertaking, but the Secretary of State refused to accept this unless it was accompanied by a statement as to the factual basis on which it was made. The director’s application failed. There was no explicit provision in the Act either way, and it could therefore be said to be ambiguous. Looking at the proceedings in Parliament and the amendments made it was clear that an undertaking was not to be accepted unless the Secretary of State had received evidence to satisfy him as to its need. It was appropriate, accordingly, to accompany the undertaking with a statement which demonstrated compliance with the Act.
Gazette 21-Jun-2001, Times 05-Jul-2001, [2001] 1 BCLC 653
Company Directors Disqualification Act 1986 7(2A)
England and Wales
See Also – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
See Also – Secretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .
See Also – Secretary of State for Trade and Industry v Eastaway; Re Blackspur Group (No 3), Secretary of State for Trade and Industry v Davies and Others (No 2) CA 13-Sep-2001
. .
See Also – Eastaway v The United Kingdom ECHR 20-Jul-2004
The applicant had been proceeded against after the collapse of companies in which he was involved with very substantial debts. The proceedings had begun in July 1990, and lasted nearly nine years.
Held: Where proceedings could be expected to . .
See Also – Eastaway v Secretary of State for Trade and Industry and similar ChD 2-Mar-2006
. .
See Also – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 July 2022; Ref: scu.81746
Application for account of profits
Simon J
[2009] EWHC 346 (QB)
England and Wales
Updated: 23 July 2022; Ref: scu.323707
Belize
[2009] UKPC 10, [2009] BCC 433, [2009] 2 All ER 1127, [2009] 2 BCLC 148, [2009] 1 WLR 1988, [2009] Bus LR 1316, [2009] 2 All ER (Comm) 1
Commonwealth
Updated: 23 July 2022; Ref: scu.320877
[2009] EWHC 445 (Ch)
England and Wales
Updated: 23 July 2022; Ref: scu.322748
[2009] ScotCS CSOH – 20
Scotland
Updated: 23 July 2022; Ref: scu.291804
Application under CPR 3.4 and 24.2 for orders striking out or dismissing a petition under section 459 of the Companies Act 1985 because it discloses no grounds on which the petition has any real prospect of success. The petition alleges, as it has to in order to come within section 459, that the affairs of Grandactual Limited (‘the Company’) are being and have been conducted by the first to third respondents to the petition in a manner which has been unfairly prejudicial to the interests of the petitioners as shareholders.
[2005] EWHC 1415 (Comm)
England and Wales
Updated: 21 July 2022; Ref: scu.279047
A declaration was sought as to the beneficial ownership of some shares.
Sales J
[2008] EWHC 3131 (Ch)
England and Wales
Appeal from – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2022; Ref: scu.278848
Morgan J
[2008] EWHC 2334 (Ch)
England and Wales
Updated: 19 July 2022; Ref: scu.277021
The petitioner brought an action alleging unfair prejudice.
Lindsay J
[2008] EWHC 2262 (Ch)
England and Wales
Updated: 19 July 2022; Ref: scu.276709