Roadchef (Employee Benefits Trustees) Ltd v Hill and Another: ChD 29 Jan 2014

Challenge to share transfer.

Proudman J
[2014] EWHC 109 (Ch)
Bailii
England and Wales
Cited by:
CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 29 November 2021; Ref: scu.520825

UBAF Ltd v European American Banking Corporation: CA 1984

The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that the signature was not that of the bank, and that even if it was, the action would be statute barred.
Held: The court refused to strike out the claim. A company itself made a representation, if it produced a document which was signed by an authorised officer or agent acting within the scope of his actual authority. This applied to bind the defendant bank. The nature of a syndicated loan was a fiduciary arrangement, and the obligations on a lead bank were continuing for limitation purposes, time did not run, and the obligation was not time barred. The issue would be settled at trial when it was established when the defendant could be said to have come to know of the alleged deceit.

Ackner LJ
[1984] QB 713, [1984] 1 WLR 508, [1984] CLY 1579
England and Wales
Citing:
ExplainedSwift v Jewsbury and Goddard 1874
. .
ExplainedHirst v West Riding Banking Co CA 1901
The representation on which the claim made was was in a letter signed by the branch manager of the defendant bank and the court evidently assumed that this could not be equated with the bank’s own signature.
Held: The action against the bank . .
ConsideredForster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .

Cited by:
CitedNykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
CitedPegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Banking, Limitation, Torts – Other, Company

Updated: 29 November 2021; Ref: scu.181338

Bell v Lever Brothers Ltd: HL 15 Dec 1931

Contract – Mutual Mistake Test

Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying pounds 30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could have been summarily dismissed. Lever sought repayment of the pounds 30,000 and claimed rescission of the agreement for fraud. The jury found that there was no fraud, but if Lever had known of the dealings giving rise to the secret profits, it would not have paid compensation. Before the trial, Bell admitted his liability to account to Niger for his secret profits, and made a payment into court.
Held: The court laid down the test for identifying a mutual mistake in contract allowing the contract to be declared void.
The mistake must render the subject matter of the contract essentially and radically different from the subject matter which the parties believed to exist. Was it the common assumption or pre-condition upon which the compromise agreement was made? The House asked whether there was a positive duty on the part of Bell and Snelling to disclose the breaches of contract they made. Lord Atkin concluded they had no such duty, saying of Healey: ‘It will be notice that Bell was not a director of Levers and with respect I cannot accept the view of Greer LJ that if he was in a fiduciary relationship with the Niger Company he was in a similar fiduciary relationship with the share holders’.
Lord Thankerton: ‘in the absence of fraud . . I am of the opinion that neither a servant nor a director of a company is legally bound forthwith to disclose any breach of the obligations arising out of the relationship so as to give the master or the company the opportunity of dismissal . . ‘ However, he also said, ‘there may well be case where the concealment of the misconduct amounts to a fraud on the master or company . . ‘
Lord Atkin considered the possible duty of disclosure of an intending partner: ‘Fraudulent concealment has been negatived by the jury; this claim is based upon the contention that Bell owed a duty to Levers to disclose his misconduct, and that in default of disclosure the contract was voidable. Ordinarily the failure to disclose a material fact which might influence the mind of a prudent contractor does not give the right to avoid the contract. The principle of caveat emptor applies outside contracts of sale. There are certain contracts expressed by the law to be contracts of the utmost good faith, where material facts must be disclosed; if not, the contract is voidable. Apart from special fiduciary relationships, contracts for partnership and contracts of insurance are the leading instances. In such cases the duty does not arise out of contract; the duty of a person proposing an insurance arises before a contract is made, so of an intending purchaser.’

Atkin L, Lord Thankerton, Lord Blanesburgh
[1932] AC 161, [1931] UKHL 2
Bailii
England and Wales
Citing:
Dictum approvedHealey v Societe Anonyme Francais Rubastic 1917
A director of the company claimed arrears of salary for work done notwithstanding that he had been summarily dismissed for misconduct. There was no question of a claim for damages for breach of duty. . .
Appeal fromBell v Lever Brothers Ltd CA 1931
The court was asked as to the duties of a company director: ‘It does not seem to me open to question that the directors of a company occupy a fiduciary position towards the company, with the result that they cannot retain a benefit they have . .
ApprovedLondon and Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd 1891
There is nothing inherently objectionable in the position of a company director (and chairman) who, without breaching any express restrictive agreement or disclosing any confidential information, becomes engaged, whether personally or as a director . .

Cited by:
ConfirmedGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
CitedWilliam Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
CitedAssociated Japanese Bank (International) Ltd v Credit du Nord SA 1988
A contract of guarantee was made, but based upon a term of fundamental importance which was mistaken as to the existence of certain machines.
Held: The court must first look to the nature of the purported agreement. Steyn J said: ‘Logically, . .
DistinguishedHorcal Ltd v Gatland ChD 1983
Directors have a positive duty to disclose breaches of fiduciary duty. A failure by a director of a company, as opposed to an employee, to disclose an earlier breach of fiduciary duty would render an agreement terminating his contract of service (on . .
CitedHorcal Ltd v Gatland CA 1984
The court considered the arguments presented as to the duty of a director of a company to disclose his own breach of fiduciary duty: ‘Counsel . . submitted, as a general proposition, that, putting fraud on one side, there is no general duty on . .
CitedEIC Services Ltd European Internet Capital Ltd v Phipps, Paul, Barber CA 30-Jul-2004
Whether issue of additional shares had been properly authorised . .
CitedItem Software (UK) Ltd v Fassihi and Others ChD 5-Dec-2002
Enforcement of confidentiality clause in contract of employment on termination. . .
CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
MentionedUltraframe (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 . .
CitedHalpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
mentionedIslington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
CitedGraves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .
CitedButters and Others v BBC Worldwide Ltd and Others ChD 20-Aug-2009
In the insolvency of Woolworths plc, a subsidiary sought to have valued its shareholding in a company in which the defendants were co-shareholders. It was argued that an earlier agreement between them had not be fully superceded by a subsequent one. . .
CitedHelmet Integrated Systems Ltd v Tunnard and others CA 15-Dec-2006
Whilst employed by the claimants as a salesman, the defendant came to want to develop his idea for a modular helmet suitable for fire-fighters and others. He took certain steps including showing the proposal confidentially to a competitor, and then . .
CitedBalston Ltd v Headline Filters Ltd and Another ChD 1990
The claimant, a manufacturer of filter tubes, employed the defendant as a director. He gave notice to leave, but during his notice period, he was contacted by a customer who informed him of a meeting between that customer and the company at which . .
CitedLehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

Lists of cited by and citing cases may be incomplete.

Contract, Company

Leading Case

Updated: 29 November 2021; Ref: scu.181343

Moxon v Litchfield and Others, Re LCM Wealth Management Ltd: ChD 12 Dec 2013

The Petitioner sought redress in respect of (a) his removal from office as a director and his exclusion from management of the sixth respondent, LCM Wealth Management Limited and (b) the implementation (or purported implementation) of provisions in the Company’s Articles of Association and in an agreement between the Company’s shareholders which compel the transfer of Mr Moxon’s shares at par value if (as the other shareholders contend) he is to be characterised as a ‘Bad Leaver’ within the meaning of those provisions.

Hildyard J
[2013] EWHC 3957 (Ch)
Bailii
Companies Act 2006

Company

Updated: 26 November 2021; Ref: scu.518944

Ackerman v Ackerman and Others: ChD 12 Aug 2011

The parties disputed the division of assets within a group of companies.

Roth J
[2011] EWHC 2183 (Ch)
Bailii
England and Wales
Cited by:
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Company, Costs

Updated: 22 November 2021; Ref: scu.442740

Credit Suisse v Allerdale Borough Council: CA 20 May 1996

Builder’s Guarantee Ultra Vires LA

The council set out to provide a swimming pool using powers under s.19 of the 1976 Act. Purporting to use powers under s.111 of the 1972 Act, it set up a company to develop a site by building a leisure pool and time-share units, with a view to selling the time-share units to pay for the cost of building the pool. The council gave a guarantee to help the company to finance the project, and on the strength of this the company obtained a facility from the bank. The sale of the time-share units proved unsatisfactory and the company went into liquidation. The bank sued the council under the guarantee to recover the sums owed to it by the company.
Held: The guarantee was ultra vires where it had been given to a company when the authority was acting outside it’s proper powers. Where a statutory corporation purports to enter into a contract which it is not empowered by the relevant statute to enter into, the corporation lacks the capacity to make the supposed contract. This lack of capacity means that the document and the agreement it contains do not have effect as a legal contract. It exists in fact but not in law. It is a legal nullity. The purported contract which is in truth not a contract does not confer any legal rights on either party. Neither party can sue on it. Any third party dealing with a local authority should be aware of that fact [of limited capacity and competence] and of the potential legal risk.
Hobhouse LJ said: ‘The discretion of the court in deciding whether to grant any remedy is wide one. It can take into account many considerations, including the needs of good administration, delay, the effect on third parties, and the utility of granting the relevant remedy.’

Hobhouse LJ
Times 20-May-1996, [1997] QB 306
Local Government Act 1972 111, Local Government (Miscellaneous Provisions) Act 1976 819
England and Wales
Citing:
Appeal fromCredit Suisse v Allerdale Borough Council QBD 17-Jun-1994
A Local Authority’s guarantee for its own company was void, having been given for impermissible reasons. . .
AppliedLondon and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .

Cited by:
CitedStretch v The United Kingdom ECHR 24-Jun-2003
The claimant had taken a lease of property from a local authority. Relying upon an option for renewal, he invested substantially in the property, but it was then decided that the option was ultra vires.
Held: Property rights protected under . .
CitedRegina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
CitedKilby v Basildon District Council Admn 26-Jul-2006
Tenants complained that the authority landlord had purported to vary a clause in his secure tenancy agreement which gave certain management rights to tenants.
Held: The powers to let on secure tenancies were governed by statute. The clause . .
CitedBirmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .

Lists of cited by and citing cases may be incomplete.

Local Government, Contract, Company, Banking

Updated: 20 November 2021; Ref: scu.79620

Re Singh Brothers Contractors (North West) Ltd: ChD 27 Jun 2013

Derivative claim on behalf of the company under section 261 of the Companies Act 2006 against the first defendant, a director of the second defendant, for breach of director’s duty, breach of fiduciary duty and breach of trust. The claimant sought orders for damages, an account, further or other relief and costs. The claimant also sought an order that he be indemnified out of the company’s assets in respect of the legal costs of the derivative claim. It was said that the claimant expected to recover more than andpound;800,000.

Hdge QC HHJ
[2013] EWHC 2138 (Ch)
Bailii

Company

Updated: 19 November 2021; Ref: scu.514959

In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose: ChD 1949

The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be completed. Nevertheless, the testator had done everything in his power to divest himself of the shares in question to Mr Hook. He had executed a transfer. It was not suggested that the transfer was not in accordance with the company’s regulations. He had handed that transfer together with the certificates to Mr Hook. There was nothing else the testator could do. Mr Hook’s legal title would not be perfected until the directors passed the transfer for registration, but that was not an act which the testator had to do, it was an act which depended on the discretion of the directors. The gift was effective

Jenkins J
[1949] Ch 78
England and Wales
Cited by:
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
ApprovedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedMascall v Mascall CA 13-Jun-1984
The question was whether a gift of land was completely constituted by delivery of the land certificate
Held: Equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to . .
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal fromIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
MentionedZeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

Verderame v Commercial Union Assurance Co Plc: CA 2 Apr 1992

The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be awarded on the tort where they were not available in contract.

Balcombe LJ
[1992] BCLC 793, Times 02-Apr-1992
England and Wales
Citing:
FollowedWatts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .

Cited by:
CitedJohnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
CitedHamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Agency, Insurance, Company, Contract, Negligence, Damages

Updated: 16 November 2021; Ref: scu.181818

JMMB Merchant Bank Ltd v The Real Estate Board: PC 20 Apr 2015

(Jamaica) The Board was asked ‘ two issues, namely (i) whether a charge in favour of the Real Estate Board (‘the REB’) is valid only if it has been registered under section 93 of the Companies Act 2004; and (ii) to what extent (if at all) does a charge in favour of a regulated financial institution rank pari passu with the REB’s charge.’

Lady Hale
Lord Sumption, Lord Carnwath, Lord Hughes, Lord Hodge
[2015] UKPC 16
Bailii
England and Wales

Land, Company

Updated: 12 November 2021; Ref: scu.545684

Maclaine Watson and Co Ltd v International Tin Council: HL 2 Jan 1989

The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in the United Kingdom – rather than the states who were its members and the parties to the international treaty – the ITC was the contracting party in the contracts it had entered into with the appellant companies. There was no basis for holding the member states liable for its debts, and, even if in international law any such basis had existed, there would have been no basis for enforcing such a liability in a United Kingdom court. If under international law the (unincorporated) treaty made the ITC the agent of its members when contracting, this too was a liability which a United Kingdom court could not enforce, if it could not be found in the 1972 Order. A claim for the appointment of a receiver over ITC’s assets, including any claims it might have under the treaty to be indemnified by its members in respect of its liabilities to the appellants, failed for similar reasons. An unincorporated treaty can create no rights or obligations in domestic law.
Lord Templeman stressed the inability of United Kingdom courts to enforce unincorporated ‘treaty rights and obligations conferred or imposed by agreement or by international law’ though it suggests such courts might look at an unincorporated treaty ‘for the purpose of resolving any ambiguity in the meaning and effect of the Order of 1972’.
Lord Oliver: ‘It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. . . . That is the first of the underlying principles. The second is that, ‘as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant.’
However he recognised exceptions: ‘These propositions do not, however, involve as a corollary that the court must never look at or construe a treaty. ‘ and ‘it is well established that where a statute is enacted in order to give effect to the United Kingdom’s obligations under a treaty, the terms of the treaty may have to be considered and, if necessary, construed in order to resolve any ambiguity or obscurity as to the meaning or scope of the statue. Clearly, also, where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties under their contract’ and ‘Further cases in which the court may not only be empowered but required to adjudicate upon the meaning or scope of the terms of an international treaty arise where domestic legislation, although not incorporating the treaty, nevertheless requires, either expressly or by necessary implication, resort to be had to its terms for the purpose of construing the legislation . . . or the very rare case in which the exercise of the Royal Prerogative directly effects an extension or contraction of the jurisdiction without the constitutional need for internal legislation . . . ‘ and ‘It must be borne in mind, furthermore, that the conclusion of an international treaty and its terms are as much matters of fact as any other fact. That a treaty may be referred to where it is necessary to do so as part of the factual background against which a particular issue arises may seem a statement of the obvious. But it is, I think, necessary to stress that the purpose for which such reference can legitimately be made is purely an evidential one. Which states have become parties to a treaty and when and what the terms of the treaty are are questions of fact. The legal results which flow from it in international law, whether between the parties inter se or between the parties or any of them and outsiders, are not and they are not justiciable by municipal courts.’

Templeman and Oliver LL
[1989] 3 All ER 523
International Tin Council (Immunities and Privileges) Order 1972, International Organisations Act 1968
England and Wales
Citing:
Appeal from (affirmed)Maclaine Watson and Co Ltd v International Tin Council CA 1988
The court asked the extent to which international law forms part of the law of this country. Nourse LJ said: ‘For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of . .
Appeal from (affirmed)Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
CitedSecretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
CitedRustomjee v The Queen QBD 1876
The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the . .
CitedZoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
CitedPost Office v Estuary Radio Ltd CA 1968
On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal . .
CitedBlackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .

Cited by:
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
AffirmedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
AffirmedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

International, Company

Leading Case

Updated: 11 November 2021; Ref: scu.194460

Gaiman v The National Association for Mental Health: ChD 1970

The court considered the articles of an association without share capital but limited by guarantee. One article provided that a member should cease to be a member of the association if he were requested by resolution of the council to resign. It was alleged that the council had acted under that article in breach of its fiduciary duty to act for the benefit of the association as a whole and that the expulsion of the plaintiffs was therefore invalid.
Held: Megarry J said: ‘If the council had acted in breach of its fiduciary duty towards members of the association, this could hardly mean that the council’s acts were invalid. A breach of trust is not a nullity, but a ground for complaint.’ He declined to intervene and doubted whether the principles of natural justice could apply to a company formed under the Companies Acts. Freedom of association embraces the freedom to exclude from association those whose membership it honestly believes to be damaging to the interests of the Society: ‘one of the more difficult problems of the doctrine of natural justice is to determine what cases fall within its ambit;’

Megarry J VC
[1970] 3 WLR 42, [1971] Ch 317, [1970] 2 All ER 362
England and Wales
Cited by:
CitedKoeller and Another v Coleg Elidyr (Camphill Communities Wales) Ltd CA 12-Jul-2005
The applicants occupied a house as licensees. An order for possession was made against them. The company was a charitable company set up to provide accomodation in communities for handicapped adults. The workers in the communities were not formally . .
CitedShearson Lehman Hutton Inc and Another v Maclaine Watson and Co Ltd and Others 1989
The court considered the requirements of natural justice in the light of the decision in Gaiman: ‘Nor do I consider my conclusions to be inconsistent with the decision of Megarry J in [Gaiman] because Megarry J held that the principles of natural . .

Lists of cited by and citing cases may be incomplete.

Company, Natural Justice

Leading Case

Updated: 11 November 2021; Ref: scu.228471

Gilford Motor Co Ltd v Horne: CA 1933

The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found that the company had been set up to enable the business to be carried on under his own control but without incurring liability for breach of the covenant. The reality was however that the company was being used as ‘the channel through which the defendant Horne was carrying on his business.’ In fact, he dismissed the claim on the ground that the restrictive covenant was void.
Held: The ruse was ineffective, and an injunction was issued to prevent Horne and his company from breaching the covenant he had given. The company was (as Lord Hanworth MR put it) formed in order to mask the effective carrying on of a business by Mr Horne, the purpose being to enable him to carry on that business in breach of a covenant he had entered into. The shareholders and directors of the company were Mr Horne’s wife and one Howard, an employee of the company.
Lord Hanworth MR said: ‘I have not any doubt on the evidence I have had before me that the Defendant Company was the channel through which the Defendant Horne was carrying on his business. Of course, in law the Defendant Company is a separate entity from the Defendant Horne but I cannot help feeling quite convinced that at any rate one of the reasons for the creation of the company was the fear of Horne that he might commit breaches of covenant . . and that he might possibly avoid that liability if he did it through the Defendant company . . I am quite satisfied that this company was formed as a device, a stratagem, in order to mask the effective carrying on of the business of Horne. The purpose of it was to try to enable him under what is a cloak or a sham, to engage in business which, on consideration of the agreement which had been sent to him before the company was incorporated, was a business in respect of which he had a fear that plaintiffs might intervene and object.’

Lord Hanworth MR, Lawrence and Romer LJJ
[1933] All ER 109, [1933] Ch 935
England and Wales
Cited by:
CitedJones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
CitedColes and others (Trustees of the Ward Green Working Mens Club) v Samuel Smith Old Brewery (Tadcaster) (Unltd Company) and Another CA 29-Nov-2007
The claimants appealed refusal of an order for specific performance of a contract for the purchase of land under the exercise of an option agreement. The defendant had conveyed the land to a subsidiary in order to defeat the option.
Held: ‘The . .
DistinguishedM and S Drapers (a Firm) v Reynolds CA 1956
The defendant, a collector salesman entered the employment of a firm of credit drapers at a weekly wage of andpound;10. He brought with him the connection of customers acquired in previous employments. He entered into a restrictive covenant that he . .
CitedAssociated Foreign Exchange Ltd v International Foreign Exchange (UK) Ltd and Another ChD 26-May-2010
The claimant sought interim injunctions to enforce a restrictive covenant against solicitation of customers in a former employee’s contract. The employee, a FOREX dealer, had been placed on garden leave for three months and then his contract . .
CitedVTB 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 . .
CitedPrest 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 . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
CitedAlec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.

Company

Leading Case

Updated: 10 November 2021; Ref: scu.259222

Hosking v Marathon Asset Management Llp: ChD 5 Oct 2016

Loss of agent’s share for breach within LLP

The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a limited liability partnership.
Held: The profit share of a partner or LLP member can potentially be subject to forfeiture. A partner or LLP member is an agent the mere fact that someone is a partner or LLP member as well as an agent should not preclude the operation of a principle which affects agents more generally.

Newey J
[2016] EWHC 2418 (Ch), [2016] WLR(D) 501, [2017] Ch 157, [2017] 2 WLR 746,
Bailii, WLRD
Arbitration Act 1996, Partnership Act 1890, Limited Liability Partnerships Act 2000, Limited Liability Partnership Regulations 2001
England and Wales
Citing:
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedBank of Ireland and Another v Jaffery and Another ChD 23-May-2012
Claim for breach of fiduciary duty brought by the Bank against one of its erstwhile senior executives.
Held: Vos J concluded that forfeiture of agency fees would be disproportionate and inequitable for breach of an employment or agency . .
CitedDunne v English CA 1874
A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a . .
CitedHelmore v Smith 1886
The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the . .
CitedHilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .
CitedErikson v Carr 1945
New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it . .
CitedOlson v Gullo 1994
(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedReinhard v Ondra Llp and Others ChD 14-Jan-2015
The parties disputed whether the claimant had become a member of the defendant limited liability partnership.
Warren J said: ‘the ‘share’ of a member [of an LLP] is the totality of the contractual or statutory rights and obligations of that . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Company

Updated: 10 November 2021; Ref: scu.569924

Tito v Wadell (No 2): ChD 1977

The liability to account for profits on breach of the self-dealing rule and the fair-dealing rule does not arise from a breach of duty at all. In his judgment such liability is the consequence of an equitable disability rather than of a breach of duty, such as a breach of trust by a trustee or, it appears, a breach of an analogous duty, such as the fiduciary obligations of a company director to his company. The claim for an account of profits is a claim for unjust enrichment, which may succeed, even in the absence of the commission of any wrong, such as a breach of trust or of fiduciary duty or the misuse or misapplication of any of the assets of the beneficiary of the duty. the fair-dealing rule was not confined to trustees, but ‘to many others, such as agents, solicitors and company directors’. It would be anomalous if the limitation applied to trustees, but not to others subject to the same rule. ‘A possible line of escape from the anomaly would be to treat agents, solicitors and the rest as constructive trustees for this purpose, so that all would be subject to the six years period: but I should be reluctant to resort to such artificiality unless driven to it.’

Sir Robert Megarry VC
[1977] 1 Ch 107
Limitation Act 1939 19(2)
England and Wales
Cited by:
CitedDEG-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 . .
CitedBhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .

Lists of cited by and citing cases may be incomplete.

Company, Limitation

Leading Case

Updated: 10 November 2021; Ref: scu.187427

Williams and Another v Natural Life Health Foods Ltd and Another: HL 30 Apr 1998

A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of personal liability must be established before a company director can become liable for negligent misstatement under the Hedley Byrne principles.
Lord Steyn said: ‘The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said and done by the defendant or on his behalf. Obviously the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff.’ As to whether he was liable as a joint tortfeasor: ‘In any event, the argument is unsustainable. A moment’s reflection will show that, if the argument were to be accepted in the present case, it would expose directors, officers and employees of companies carrying on business as providers of services to a plethora of new tort claims. The fallacy in the argument is clear. In the present case liability of the company is dependent on a special relationship with the plaintiffs giving rise to an assumption of responsibility. M was a stranger to that particular relationship. He cannot therefore be liable as a joint tortfeasor with the company. If he is to be held liable to the plaintiffs, it could only be on the basis of a special relationship between himself and the plaintiffs. There was none. I would therefore reject this alternative argument.’

Lord Goff of Chieveley, Lord Steyn, Lord Hoffmann, Lord Clyde, Lord Hutton
Times 01-May-1998, Gazette 28-May-1998, [1998] UKHL 17, [1998] 1 WLR 830, [1998] BCC 428, (1998) 17 Tr LR 152, [1998] 1 BCLC 689, [1998] 2 All ER 577
House of Lords, Bailii
England and Wales
Citing:
Appeal fromWilliams; Reid v Natural Life Health Foods Limited and Mistlin CA 5-Dec-1996
(Majority) A director of a one man company himself could himself be liable for negligent advice outside his duties as a director where his personal character known to be relied upon. In order to fix a director with personal liability, it must be . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
At first instanceWilliams and Another v Natural Life Health Foods Ltd and Another QBD 18-Jan-1996
A company director can be liable for the negligent mis-statement of the company if he warrants his own personal skill. . .
CitedSalomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .

Cited by:
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedPrecis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
CitedMCA Records Inc and Another v Charly Records Ltd and others (No 5) CA 5-Oct-2001
The court discussed the personal liability of a director for torts committed by his company: ‘i) a director will not be treated as liable with the company as a joint tortfeasor if he does no more than carry out his constitutional role in the . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedPatchett and Another v Swimming Pool and Allied Trades Association Ltd CA 15-Jul-2009
The claimant suffered damages when the contractor he engaged to construct his swimming pool went into liquidation. Before employing him, he had consulted the defendant’s web-site which suggested that its members were checked for solvency on becoming . .
CitedJeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

Lists of cited by and citing cases may be incomplete.

Company, Negligence

Leading Case

Updated: 10 November 2021; Ref: scu.158948

Regina v Take-over Panel, ex parte Datafin PLC: CA 1986

Amenability to judicial review

The issue of amenability to judicial review often requires an examination of the nature of the power under challenge as well as its source: ‘In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction [of judicial review], but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.’ Where the source of the power did not clearly provide the answer, then the nature of the power fell to be examined.
Lloyd LJ said: ‘If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr Lever submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to ‘public law’ in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we were referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other’.
An unincorporated association may be amenable to judicial review, where it would otherwise be ‘without legal personality’.
Sir John Donaldson MR said: ‘In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described are a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.’

Sir John Donaldson MR, Lloyd LJ
[1987] 1 QB 815, [1986] 2 All ER 257, [1986] 1 WLR 763, (1986) 2 BCC 99086, [1986] EWCA Civ 8
Bailii
England and Wales
Cited by:
CitedRegina v British Broadcasting Corporation, ex parte Referendum Party; Regina v Independent Television Commission, ex parte Referendum Party Admn 24-Apr-1997
The Referendum Party challenged the allocation to it of less time for election broadcasts. Under the existing agreements, having fielded over 50 candidates, they were allocated only five minutes.
Held: Neither the inclusion of past electoral . .
CitedHampshire County Council v Beer (T/A Hammer Trout Farm); Regina (Beer) v Hampshire Farmers’ Market Ltd CA 21-Jul-2003
The applicant had been refused a licence to operate within the farmer’s market. It sought judicial review of the rejection, but the respondent argued that it was a private company not susceptible to review.
Held: The decisions of the Farmers . .
CitedRoyal Mail Group Plc v The Consumer Council for Postal Services CA 7-Mar-2007
The Royal Mail appealed a grant of judicial review of the decision of the Post regulator not to penalise the company for its failure to meet its service conditions as regards enforcement of credit terms for bulk mail customers.
Held: The . .
CitedBoyle, Regina (On the Application of) v Haverhill Pub Watch and Others Admn 8-Oct-2009
The claimant had been banned from public houses under the Haverhill Pub Watch scheme. He now sought judicial review of a decision to extend his ban for a further two years. The Scheme argued that it was not a body amenable to judicial review, and . .
CitedRegina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
CitedRegina v The Imam of Bury Park Mosque, Luton and others ex parte Sualiman Ali CA 12-May-1993
The court had been asked to intervene in an internal dispute as to the role of an Imam in a mosque community.
Held: The request was denied. The case was not one of public law: ‘ the particular function which the Imam was performing affected . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Company

Leading Case

Updated: 09 November 2021; Ref: scu.181976

In re Sevenoaks Stationers (Retail) Ltd: CA 1990

The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to cases at the bottom end, and the middle bracket of 6 to 10 years for serious cases. The period should be fixed by the allegations made in the charge, not in the evidence coming out later. Non-payment of crown debts was to be treated more seriously than for other debts, though non-payment of Crown debts is not per se evidence of unfitness: ‘it is necessary to look more closely in each case to see what the significance, if any, of the non-payment of the Crown debt is.’ ‘(i) the top bracket of disqualification for periods over ten years should be reserved for particularly serious cases. These may include cases where a director who has already had one period of disqualification imposed on him falls to be disqualified yet again. (ii) the minimum bracket of two to five years’ disqualification should be applied where, though disqualification is mandatory, the case is, relatively, not very serious. (iii) the middle bracket of disqualification for from six to 10 years should apply for serious cases which do not merit the top category.’
As to the words of section 6 of the 1986 Act, these were ‘ordinary words of the English language’, and, then referring to earlier judicial statements, Dillon LJ said: ‘Such statements may be helpful in identifying particular circumstances in which a person would clearly be unfit. But there seems to have been a tendency, which I deplore, on the part of the Bar, and possibly also on the part of the official receiver’s department, to treat the statements as judicial paraphrases of the words of the statute, which fall to be construed as a matter of law in lieu of the words of the statute. The result is to obscure that the true question to be tried is a question of fact – what used to be pejoratively described in the Chancery Division as ‘a jury question’.’

Dillon Butler-Sloss and Staughton LJJ
[1991] Ch 166, [1990] BCC 765
Company Directors Disqualification Act 1986 6, Companies (Disqualification of Unfit Directors) Proceedings Rules 1987
England and Wales
Citing:
CitedIn re Lo-Line Electric Motors Ltd 1988
When considering the filing of additional evidence changing allegations made under the 1986 Act, the paramount requirement is that the director facing disqualification must know the charge he has to meet. As to the standard of misbehaviour required . .

Cited by:
CitedSecretary of State for Trade and Industry v Christopher Paul Reynard CA 18-Apr-2002
A company director was examined in court, in the course of company director disqualification proceedings. The judge was so concerned by his behaviour as a witness, as to extend the period of disqualification. He had appealed, and the Secretary of . .
CitedSimpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
CitedThe Secretary of State for Trade and Industry v Swan and Othes ChD 22-Jul-2003
When commencing proceedings under the Act, the papers were defective. The secretary of state had failed to give appropriate notice, and thus prevented him from making representations as to the allegations. The allegations involved the manipulation . .
CitedThe Secretary of State for Trade and Industry v Michael Hamilton Amiss, Jonathan Andrew Chapman, Roger Rex Ingles ChD 20-Mar-2003
The Secretary sought disqualification orders, under section 8 which left the court with a discretion as to whether an order should be made.
Held: It was not necessary to establish dishonesty to a Twinsectra standard to justify an order. The . .
CitedIn re Samuel Sherman Plc 1991
Disqualifications under section 8 should be of similar length to those recommended in the Sevenoaks Stationers for disqualifications under section 6. . .
CitedThe 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 . .
CitedSecretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
CitedSecretary of State for Business Enterprise and Regulatory Reform v Sullman and Another ChD 19-Dec-2008
An application was made to disqualify as a company director a former director of Claims Direct Limited. He had been accused of several actions which might justify a disqualification.
Held: The court found misconduct but delayed a decision on . .
CitedSecretary of State for Business Innovation and Skills v Aaron and Others ChD 10-Dec-2009
The claimant sought a disqualification after the defendants had been directors of a company mis-selling Structured Capital at Risk products. The FSA had reported that they had been negligent.
Held: ‘I do not have to decide whether or not the . .
CitedJones v Director of Public Prosecutions Admn 27-Jan-2011
The driver appealed against his conviction for exceeding the relevant maximum speed on a Special Road, the A55 in North Wales. The speed limit signs were designed to be illuminated, but the lamps were not working. Instructions had been given not to . .
CitedSecretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
CitedSecretary of State for Trade and Industry v Langridge CA 1991
The lower court had dismissed a petition for a director disqualification because of the failure to comply with the ten day requirement in section 16.
Held: (Majority) The provisions of section 16 were directory only and not mandatory. . .
CitedSecretary of State for Trade and Industry v McTighe CA 1997
Morritt LJ, giving the judgment of the court, distinguished between the conduct of two directors, disqualifying one for twelve years and the other for eight. He said: ‘The period for disqualification is a matter for the discretion of the judge . .
CitedCathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012
The directors appealed against disqualification orders made against them under the 1986 Act. Their company had become insolvent, owing substantial arrears of PAYE and NI contributions. The revenue had said that they had paid other creditors first. . .
CitedRe Tech Textiles Ltd ChD 1998
A disqualified director sought leave under section 17 to act as a director or be concerned or take part in the management of 3 companies and was successful in respect of 1 company. Arden J looked at the statutory basis and observed that the purpose . .
CitedHarris v Secretary of State for Business, Innovation and Skills ChD 9-Aug-2013
The claimant had offered an undertaking not to act as a company director for a period of time, to avoid applications for his disqualification. He now sought leave to act.
Held: The applicant had: ‘put forward ample evidence to justify a . .

Lists of cited by and citing cases may be incomplete.

Company

Leading Case

Updated: 09 November 2021; Ref: scu.182389

In Re Smith and Fawcett Ltd: CA 1942

Directors to act Without Collateral Purpose

The primary duty of a director imposed by the general law is that he should act in what he considers to be the best interests of the company, and not for any collateral purpose. That duty is a subjective one that depends on the directors exercising their discretionary powers bona fide in what they, and not the court, consider to be in the interests of the company. Lord Greene MR said: ‘The principles to be applied in cases where the articles of a company confer a discretion on directors . . are, for present purposes, free from doubt. They must exercise their discretion bona fide in what they consider – not what a court may consider – is in the interests of the company, and not for any collateral purpose . . The question, therefore, simply is whether on the true construction of the particular article the directors are limited by anything except their bona fide view as to the interests of the company.’
As to the practice of making findings as to a director’s motives by way of affidavit evidence, Lord Greene MR said: ‘I strongly dislike being asked on affidavit evidence alone to draw inferences as to the bona fides or mala fides of the actors. If it is desired to charge a deponent with having given an account of his motives and his reasons which is not the true account, then the person on whom the burden of proof lies shall take the ordinary and obvious course of requiring the deponent to submit himself to cross-examination. That does not mean that it is illegitimate in a proper case to draw inferences as to bona fides or mala fides in cases where there is on the face of the affidavit sufficient justification for doing so, but where the oath of the deponent is before the court, as it is here, and the only grounds on which the court is asked to disbelieve it are matters of inference, many of them of a doubtful character, I decline to give to those suggestions the weight which is desired.’

Lord Greene MR
[1942] Ch 304, [1942] 1 All ER 542
England and Wales
Cited by:
CitedOfficial Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
CitedCayne and Another v Global Natural Resources Plc ChD 12-Aug-1982
The court gave this example of the legitimate use of the directors’ powers to defeat a take-over: ‘If Company A and Company B are in business competition, and Company A acquires a large holding of shares in Company B with the object of running . .
CitedCriterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
CitedUltraframe (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 . .
CitedMactra Properties Ltd v Morshead Mansions Ltd and Others ChD 6-Nov-2008
The block of flats was owned by a company in which each tenant owned one share. The claimant company had bought twenty five flats, and now sought to sell them, but the freeholder refused to register share transfers saying that the claimant was in . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
Company, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.181877

Kinsela v Russell Kinsela Pty Ltd (In Liq): 1986

(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded as the company when questions of the duty of directors arise. If, as a general body, they authorise or ratify a particular action of the directors, there can be no challenge to the validity of what the directors have done. But where a company is insolvent the interests of the creditors intrude. They become prospectively entitled, through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the company’s assets. It is in a practical sense their assets and not the shareholders’ assets that, through the medium of the company, are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration.’

Street CJ, Hope and McHugh JJA
(1986) 4 NSWLR 722, (1986) 4 ACLC 215, 10 ACLR 395
Cited by:
ApprovedWest Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .

Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Leading Case

Updated: 09 November 2021; Ref: scu.565823

Macaura v Northern Assurance Company Limited: HL 1925

Macaura owned the large majority of shares in a limited company, trading in timber. The company also owed him substantial sums. He kept on the insurance of timber and other assets within the business but in his own name. When he came to claim, his claim was refused by the insurers.
Held: His appeal failed. An insurable interest in property could only arise where the insured held a legal or equitable interest in the insured property.
Neither a shareholder nor a simple creditor of a company had any insurable interest in any particular asset of the company because as such he had no legal or equitable interest in it.
Lord Buckmaster said: ‘Turning now to his position as shareholder, this must be independent of the extent of his share interest. If he were entitled to insure holding all the shares in the company, each shareholder would be equally entitled, if the shares were all in separate hands. Now, no shareholder has any right to any item of property owned by the company, for he has no legal or equitable interest therein. He is entitled to a share in the profits while the company continues to carry on business and a share in the distribution of the surplus assets when the company is wound up. If he were at liberty to effect an insurance against loss by fire of any item of the company’s property, the extent of his insurable interest could only be measured by determining the extent to which his share in the ultimate distribution would be diminished by the loss of the asset – a calculation almost impossible to make. There is no means by which such an interest can be definitely measured and no standard which can be fixed of the loss against which the contract of insurance could be regarded as an indemnity . . In the present case, though it might be regarded as a moral certainty that the appellant would suffer loss if the timber which constituted the sole asset of the company were destroyed by fire, this moral certainty becomes dissipated and lost if the asset be regarded as only one in an innumerable number of items in a company’s assets and the shareholding interest be spread over a large number of individual shareholders.’ and ‘No shareholder has any right to any item of property owned by the company, for he has no legal or equitable interest therein. He is entitled to a share in the profits while the company continues to carry on business and a share in the distribution of the surplus assets when the company is wound up.’
Lord Sumner also said that the appellant had no insurable interest: ‘It is clear that the appellant had no insurable interest in the timber described . . He had no lien or security over it and, though it lay on his land by his permission, he had no responsibility to its owner for its safety, nor was it there under any contract that enabled him to hold it for his debt. He owned almost all the shares in the company, and the company owed him a good deal of money, but, neither as creditor nor as shareholder, could he insure the company’s assets. The debt was not exposed to fire nor were the shares, and the fact that he was virtually the company’s only creditor, while the timber was its only asset, seems to me to make no difference. He stood in no ‘legal or equitable relation to’ the timber at all. He had no ‘concern in’ the subject insured. His relation was to the company, not its goods, and after the fire he was directly prejudiced by the paucity of the company’s assets, not by the fire.’
Lord Wrenbury said: ‘My Lords, this appeal may be disposed of by saying that the corporator even if he holds all the shares is not the corporation, and that neither he nor any creditor of the company has any property legal or equitable in the assets of the corporation.’

Lord Buckmaster, Lord Wrenbury, Lord Sumner
[1925] AC 619, (1925) 133 LT 152, [1925] All ER 51, [1925] AC 619, [1925] All ER Rep 51, 94 LJPC 154, 133 LT 152, 41 TLR 447, 69 Sol Jo 777, 31 Com Cas 10 HL
England and Wales
Cited by:
DistinguishedSharp v Sphere Drake Insurance plc (The Moonacre) 1992
S, a retired businessman, had bought a vessel and insured it in his name, but registered it in the name of company, R. In the winter, the boat was laid up, but occupied by a workman who maintained it and kept it secure. The boat was destroyed by a . .
CitedFeasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

Lists of cited by and citing cases may be incomplete.

Insurance, Company

Leading Case

Updated: 09 November 2021; Ref: scu.184482

In re Racal Communications Ltd; In Re a Company: HL 3 Jul 1980

Court of Appeal’s powers limited to those Given

The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review: ‘There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealable, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.’
Lord Diplock said: ‘The break-through made by Anisminic . . was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.’ But there was: ‘no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic . . ; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide.’

Lord Diplock, Lord Salmon, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Scarman
[1981] AC 374, [1980] UKHL 5, [1980] 2 All ER 634, [1980] 3 WLR 181
Bailii
Supreme Court Act 1981 15, Companies Act 1948 441
England and Wales
Citing:
CitedRegina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Majority OverruledPearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
CitedDeighton v Cockle CA 2-Dec-1911
Where, an order haying been obtained for judgment under Order xiv., judgment is not signed until more than twelve months afterwards, the case does not come within Order lxiv., r. 13, and therefore it is not necessary that the notice of intention to . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Cited by:
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
CitedG v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
AppliedWestminster City Council v O’Reilly and others CA 1-Jul-2003
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the . .
CitedRegina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
CitedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
CitedRegina v Manchester Crown Court ex parte Williams and Simpson 1990
If an application to prefer a Voluntary Bill is successful there is no right of appeal, and nor can the decision be made subject to judicial review. . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedEvans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
CitedRegina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.182917

Foster v McNicol and Another: QBD 28 Jul 2016

Incumbent Labour leader did not need nominations

The claimant challenged a decision of the National Executive Committee of the Labour Party to allow its present Leader to stand in the leadership election challenging his position without the need for him to submit first the otherwise standard nominations from a certain percentage of the party.
Held: The challenge failed. Properly read, the rules required nominations from a challenger only. As the incumbent, he was not a challenger, and was not to be required to go through the procedure requiring nomination.
Foskett J summarised the effect of the rules: ‘(a) where there is a vacancy for Leader, anyone who wishes to be considered for the position would require nominations from 15% of the combined Commons members of the PLP and EPLP in order to be a candidate in the election;
(b) where there is no vacancy (because the Leader is still in place), anyone who wishes to challenge the Leader’s right to continue as Leader would need nominations from 20% of the combined Commons members of the PLP and EPLP in order to mount such a challenge;
(c) the Leader would not in that situation (where there is no vacancy) be someone who was a ‘challenger’ for the leadership and, accordingly, would require no nominations in order to compete in the ballot to retain his/her position as Leader.’
It was argued that in attempting to oust the jurisdiction of the court, that part f the rules were void.
Held: Since the question was not directly in issue, a proper resolution must await a case raising it more directly: ‘ because of the court’s reluctance to be drawn into any kind of political debate, I do accept unreservedly that where a decision, certainly about the application of any rule that is ambiguous, requires consideration of background material beyond the precise words used in the rule that has significant political connotations, the NEC may well be better placed than the court to consider those implications and to decide accordingly. In this case, had it been necessary to consider the competing contentions about what were said by each side to be the ‘absurd’ and ‘obviously unintended’ consequences arising from the acceptance of the other side’s view of the meaning of Clause II.B.2(ii), the court would have found itself in the midst of what Mr Henderson correctly characterised as ‘intensely political’ considerations. Because the problem has not arisen, it is not necessary to speculate on what might have been the result, but I highlight the issue because it brings clearly and vividly into focus the importance of recognising the vital dividing line between the world of politics and the world of the law.’

Foskett J
[2016] EWHC 1966 (QB)
Bailii, Judiciary Summmary, Judiciary
England and Wales
Citing:
CitedChoudry and others v Triesman ChD 31-Mar-2003
The applicants sought an order requiring the respondent general secretary of the Labour Party to allow them to stand as candidates for the party in the forthcoming local elections. After allegations about the way in which selection had been carried . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedBank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
CitedArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
CitedLee v Showmens Guild of Great Britain CA 1952
Decisions of inferior tribunals, including arbitrators, were reviewable on the basis of general error of law on record for which certiorari might issue. A decision may be reviewable where there was no evidence supporting particular conclusions.
CitedBaker v Jones 1954
There was a dispute within an unincorporated weightlifting association about an alleged misuse of its funds.
Held: Words in an agreement are void to the extent that they seek to oust the jurisdiction of the court.
Lynsey J said: ‘The . .
CitedLeigh v National Union of Railwaymen 1970
. .
CitedJacques v Amalgamated Union of Engineering Workers 1986
The rules of a Trades Union are not to be construed as if they were a statute but are ‘to be given a reasonable interpretation which accords with their intended meaning; bearing in mind their authorship, their purpose and the readership to which . .
CitedBritish Equity v Goring CA 1997
Roskill LJ considered the ‘inelegant draftsmanship’ of a trades union’s rules, saying: ‘Some reliance was placed upon the differing and somewhat indiscriminate use of words such as ‘motion,’ ‘resolution’ and ‘questions’ in the various rules as . .

Lists of cited by and citing cases may be incomplete.

Company, Contract, Elections

Leading Case

Updated: 09 November 2021; Ref: scu.567799

Zoya Ltd v Sheikh Nasir Ahmed (T/A Property Mart) and Others: ChD 7 Oct 2016

No warranty of authority on claimas to authority

Complaint was made that proceedings had been made by the claimant company when the solicitors acted on the instructions of somebody describing himself wrongly as a director of the company.
Held: The defendant’s request for costs against the solicitors failed. There could be no warranty of authority where the litigation was itself about the very issue alleged to have been warranted. The defendant had not relied on the warranty claimed.

William Trower QC
[2016] EWHC 2249 (Ch), [2016] WLR(D) 527
Bailii, WLRD
England and Wales
Citing:
AppliedAidiniantz v The Sherlock Holmes International Society Ltd ChD 15-Jun-2016
Solicitor does not warrant his client’s case
The company had appealed from an order for its winding up. The solicitors had acted on the instructions of a director, whose authority was now challenged.
Held: The claim for costs against the solicitors failed. They had been properly retained . .

Lists of cited by and citing cases may be incomplete.

Company, Legal Professions

Updated: 02 November 2021; Ref: scu.570349

Evangelou and Others v McNicol: CA 12 Aug 2016

Party free to set cut off date for leadership vote

The court heard an appeal against orders as to the right to vote in a forthcoming Labour party leadership election. At first instance the judge had found that the claimants should have been given the right to participate.
Held: The appeal was allowed. A correct interpretation of the party’s Rule Book, the National Executive did have the right to fix such a cut off date. It was inescapable, that in any vote, some members would be excluded.

Beatson , Macur , Sales LJJ
[2016] EWCA Civ 817, [2016] WLR(D) 460
Bailii, WLRD
England and Wales

Company

Updated: 02 November 2021; Ref: scu.568626

In re Rose, Rose v Inland Revenue Commissioners: CA 1952

The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all advantages attached to the shares as from the date on which the transfers were executed and delivered subject, as regards the legal title, to the provisions of the articles as to registration and the directors’ discretionary power to refuse registration. A transfer under seal in the form appropriate under the company’s regulations, coupled with delivery of the transfer and certificate to the transferee, does suffice, as between transferor and transferee, to constitute the transferee the beneficial owner of the share, and the circumstance that the transferee must do a further act in the form of applying for and obtaining registration in order to get in and perfect his legal title, having been equipped by the transferor with all that is necessary to enable him to do so, does not prevent the transfer from operating, in accordance with its terms as between the transferor and transferee, and making the transferee the beneficial owner. Milroy v Lord did not prevent the imposition of a trust as a matter of law if the gift was complete but the donor retained the subject-matter.

Evershed MR L, Jenkins LJ
[1952] 1 Ch 499, [1952] EWCA Civ 4, [1952] 1 All ER 1217, [1952] 1 TLR 1577, (1952) 31 ATC 138, [1952] TR 175
Bailii
England and Wales
Citing:
DistinguishedMilroy v Lord CA 26-Jul-1862
The donor executed a transfer of 50 shares. The shares were only transferable by entry in the books of the bank. No such transfer was ever made. The defendant had a power of attorney authorising him to transfer the donor’s shares and after the deed . .
ApprovedIn re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .
Appeal fromIn re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .

Cited by:
DistinguishedThe Trustee of the Property of Jan Yngve Pehrsson, a bankrupt v Madeleine von Greyerz PC 16-Jun-1999
PC (Gibraltar) The mere appointment of trustees of shares without the delivery to the trustees of forms of transfer did not give rise to a trust.
Held: A gift was intended to take effect by a transfer of . .
CitedScribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
MentionedZeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.183420

Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others: ChD 24 Jul 2009

The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies registered in the UK) said that the Ukraine was the proper jurisdiction.
Held: The court declined jurisdiction. The question of whether a party would receive a fair trial in a particular jurisdiction is peculiarly fact sensitive. Though there were grave doubts about the consistency of the Ukrainian courts, they were not sufficient to conclude that a fair trial was not possible. The dispute had no real connection with this country. The documents would be be Ukrainian and the witnesses would all have Ukrainian as their first language: ‘ the nature of dispute, the identity of the persons whose evidence will be material, the sensitivities involved (control of Ukraine’s most celebrated football club) and the very difficult legal issues that will have to be decided point overwhelmingly to Ukraine as the appropriate and indeed only natural forum fort the trial.’
The case of Owusu might still not allow a british court to decline jurisdiction in a case against the first defendant. However, that defendant was only a minor player in the action, and the tail should not be allowed to wag the dog.

Blackburne J
[2009] EWHC 1839 (Ch)
Bailii
Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
England and Wales
Citing:
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
CitedOwusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
CitedThe Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
CitedCherney v Deripaska ComC 3-Jul-2008
Renewed application for leave to serve proceedings out of jurisdiction. The court considered a submission that a fair trial would not be possible in Russia: ‘An English court will approach with considerable circumspection any contention that a . .
CitedConnelly v RTZ Corporation Plc and others HL 24-Jul-1997
The availability of legal aid to a party is not part of criteria for choosing jurisdiction save in exceptional circumstances.
Lord Goff discussed the Spiliada case: ‘the burden of proof rests on the defendant to persuade the court to exercise . .
CitedOJSC Oil Company Yugraneft v Abramovich and others ComC 29-Oct-2008
The claimants sought damages alleging a massive fraud by the defendants. The court considered whether the parties could receive a fair trial of the action in Russia.
Held: They could. Christopher Clarke J said: ‘Firstly, this case is in no way . .
CitedAmin Rasheed Shipping Corp v Kuwait Insurance Co HL 1983
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
CitedDexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Company, Jurisdiction

Updated: 01 November 2021; Ref: scu.361471

In Re Cedarwood Productions Ltd; In Re Inter City Print and Finishing Ltd; Secretary of State for Trade and Industry v Rayna and Another: ChD 3 Apr 2001

S6 of the 1986 Act proceedings had been stayed pending criminal proceedings in which the defendant was eventually convicted of conspiracy to defraud, sentenced to imprisonment and given a two year disqualification order under s2 by the trial judge, at the invitation of the defendants own counsel. The Secretary of State then applied to restore the s6 proceedings, which was opposed on the grounds it would be unjust to do so in light of the order made under s2. It was said that there was such a degree of overlap between the criminal and civil proceedings that to allow the s6 application to proceed would effectively expose the director to double jeopardy.
Held: There was no abuse of process in reviving an application for a company director disqualification order which had been adjourned to allow criminal prosecutions to be concluded, after those proceedings had been finished. There was no double jeopardy as between civil and criminal proceedings, and the parties were different, as was the nature and statutory jurisdiction of the proceedings. In this case the Secretary of State was not party to and should not be bound by the form of adjournment.
Anthony Mann QC said: ‘I have been told that (not surprisingly) this sort of situation (criminal and civil disqualification orders potentially overlapping) is not uncommon. There are reported and unreported cases in which it is apparent that civil proceedings have continued after s 2 disqualification orders have been made in relation to the respondents to criminal proceedings (for example, Secretary of State for Trade and Industry v Tjolle [1998] BCLC 333, [1998] BCC 282 in which it can be seen that a 10 year disqualification under s 2 was followed by a 15 year disqualification under s 6). However, there is no authority which in terms addresses the points raised by Mr Ayres. Accordingly I have to approach this matter as one of principle. It seems to me that the following principles and factors should be applied and considered in resolving the issues which arise in this case.
(i) I do not think that the doctrine of former recovery is applicable bearing in mind the different parties to the two sets of proceedings, their different natures, the different interests of the two ‘prosecutors’ (for want of a better word) involved and the two different statutory jurisdictions involved. I can see how the doctrine, in its autrefois convict form, might apply if one disqualification under s 2 was sought to be followed by another s 2 disqualification based on the same facts. That, however, is not the case where the clash of proceedings is between criminal proceedings and civil proceedings under s 6 . .
(ii) Nor do I think that the doctrine of double jeopardy applies. The operation of the doctrine in relation to civil proceedings was considered in Saeed v GLC [1986] IRLR 2. In that case an acquittal on a charge of assault did not bar a domestic tribunal disciplinary charge based on the same alleged assault. Popplewell J cited Connolly v Director of Public Prosecutions [1964] AC 1254, [1964] 2 All ER 401, where there are dicta which refer to the impropriety of trying a man twice for the same crime and said:
‘Mr Geddes points out, and I accept, that double jeopardy cannot apply as between criminal and civil proceedings.’
I apply the same principles.
(iii) The correct principles to apply are those relating to abuse of process. That was the basis of the consideration of the Court of Appeal in Re Barings plc (No [3]) where the alternative proceedings were disciplinary proceedings . .
(iv) The burden is on the party alleging abuse to establish it – Johnson v Gore Wood and Co [[2001] 2WLR 72].
(v) The jurisdiction to stay or strike out proceedings as an abuse on the footing that a point has been decided in earlier proceedings is not a jurisdiction that will be exercised lightly. I should be looking for circumstances which demonstrate that it would be:
‘manifestly unfair to a party to litigation before it, or [it] would otherwise bring the administration of justice into disrepute among right-thinking people,’
if I were to allow the present proceedings to continue – Hunter v Chief Constable of West Midlands [1982] AC 529 at page 526, cited by Waller LJ in Re Barings plc (No 3) at page 257.
(vi) This point is even stronger where the person who is sought to be debarred in the second set of proceedings was not even a party to the first set. While a non-coincidence of parties is not necessarily a bar to a finding of abuse, it must be an important pointer against it.
(vii) It will be essential to examine:
‘whether the issues upon which the court will need to adjudicate in the present proceedings are the same, or substantially the same, as those which have already been investigated and adjudicated upon in the [criminal proceedings].’ (per Chadwick LJ in re Barings plc (No [3]) [1999] 1 BCLC 226 at page 253)
(viii) I must bear in mind that the Secretary of State is the person to whom Parliament has entrusted the task of considering whether to seek disqualification orders in the public interest under s 6. This court is not entitled to substitute its own view as to the desirability of continuing proceedings for the view taken by the Secretary of State – see again Re Barings plc (No [3]) [1999] 1 BCLC 226 at p 252. I can only intervene if the continuation of the proceedings amounts to an abuse of the process, and the public interest factor must be borne heavily in mind in considering that question. In this context it is again important to remember that the Secretary of State was not a party to the criminal proceedings; nor was he given an opportunity to appear. A finding that the Secretary of State’s continued pursuit of proceedings that he considers to be in the public interest is an abuse of the process on the basis of findings in proceedings to which he was not a party would be a strong finding. It might not be absolutely inconceivable; but it would require a very strong and clear case. It is no answer to say, as Mr Ayres says, that the prosecuting authorities and the Secretary of State are both ’emanations of the state’. That might be an accurate description is some contexts, but they are emanations with different functions and with different interests in mind.
(ix) It is important to bear in mind the difference in focus and emphasis of the criminal proceedings when compared to the civil proceedings. The purpose of the criminal proceedings is to consider the evidence with a view to determining whether the crime has been committed. That will usually involve considering the existence or non-existence of dishonesty. If there is a conviction, then disqualification may be considered as part of the sentencing process, but the focus of the criminal proceedings is such that any detailed consideration of the conduct of the directors in question, so far as it bears on their unfitness to be directors, is unlikely to take place during the trial and will arise, if at all, at the stage of sentencing by which time all the evidence has been given. The disqualification will be considered by reference to the facts germane to the conviction. Civil proceedings under s 6 are different. The whole focus of those proceedings is on the conduct of the directors and what it says about their fitness or unfitness to be directors, and that focus exists throughout the proceedings. One also has to bear in mind the differing standards of proof in the two sets of proceedings. There may be various things not proved to the criminal standard which might be provable to the civil standard in the civil proceedings, so that decisions in the former might justifiably be revisited in the latter.
(x) It seems to me that a combination of the last two points means that in most cases it is going to be unlikely that a disqualification in criminal proceedings will make concurrent civil proceedings an abuse of process. It is likely to be only in clear cases, which can clearly be said to be on all fours with each other, that it might be said that the criminal proceedings have covered all the bases in a way which makes the civil proceedings otiose and oppressive’

Anthony Mann QC
Times 03-Apr-2001, Gazette 17-May-2001, [2001] 2 BCLC 48
Company Directors Disqualification Act 1986
England and Wales
Cited by:
Appeal fromIn Re Cedarwood Productions Ltd; In Re Inter City Print and Finishing Ltd; Secretary of State for Trade and Industry v Rayna and Another CA 26-Jun-2001
Company directors had had civil proceedings for disqualification suspended pending the outcome of criminal proceedings arising from the circumstances of the failure of their companies. They had variously suffered penalties including criminal . .
CitedThe Secretary of State for Business, Innovation and Skills v Weston and Another ChD 5-Sep-2014
The Secretary of State sought company director disqualification orders against the defendants saying they had been convicted of making false instruments. The Insolvency service had decided against such proceedings, and the Crown Court judge, when . .

Lists of cited by and citing cases may be incomplete.

Company

Leading Case

Updated: 01 November 2021; Ref: scu.81843

Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce v Manni: ECJ 9 Mar 2017

Individual data on Company registers not erasable

ECJ (Approximation of Laws Approximation of Laws Data Protection Freedom of Establishment – Judgment) Reference for a preliminary ruling – Personal data – Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Article 6(1)(e) – Data subject to disclosure in the companies register – First Directive 68/151/EEC – Article 3 – Winding-up of the company concerned – Restriction of access to that data by third parties

[2017] WLR(D) 163, [2017] EUECJ C-398/15, ECLI:EU:C:2017:197
Bailii, WLRD
Directive 95/46/EC
European

Information, Company

Updated: 01 November 2021; Ref: scu.580710

Zeital and Another v Kaye and Others: CA 5 Mar 2010

The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator sought the court’s direction. The widow and deceased had lived seperately for over 20 years, and his more recent partner said that he had informally given the shares to her. The widow and children appealed a finding in favour of the gift in respect of one share, and against the costs order.
Held: The appeal succeeded. The steps taken by the deceased to transfer the share fell short of what was required. He had not been himself registered as owner, and could not execute a share transfer. The company was in liquidation, and no share certificate was handed over. The deceased had not done all he could to transfer the share.

Dyson, Maurice Kay, Rimer LJJ
[2010] EWCA Civ 159
Bailii
England and Wales
Citing:
MentionedIn re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .
MentionedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Trusts, Company

Updated: 01 November 2021; Ref: scu.402536

Re Exchange Banking Co, Flitcroft’s Case: CA 1882

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
Cited by:
CitedHolland 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.

Company

Leading Case

Updated: 02 November 2021; Ref: scu.467093

Dickson v Pharmaceutical Society of Great Britain: HL 1970

The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and submitted it in the form of a motion to a specially convened meeting of the members. The effect of the rule would be that new pharmacies would have to be situated in physically distinct premises and their trading activities confined to pharmaceutical and traditional goods as defined in a report of one of the society’s committees. The main object of the society was ‘to maintain the honour and safeguard and promote the interests of the members in the exercise of the profession of pharmacy’. The respondent, a member of the society, brought an action for a declaration that the motion was ultra vires the society’s objects and in unreasonable restraint of trade.
Held: The rules against arrangement imposing restrictions on trade are not limited to particular kinds of restraint, and are not confined to contractual arrangements but apply to all restraints of trade, howsoever imposed. If the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid.
Lord Reid said: ‘ There are about 29,000 registered pharmacists. Some, such as those employed in hospitals, have no other duties than the professional task of dispensing. But the typical pharmacist owns or is employed in a chemist’s shop where goods other than dispensed medicines are sold to the public. Such goods have been divided into three classes: first ‘professional’, which include, besides medicines and sick room requirements, agricultural, horticultural, and industrial chemicals and various scientific and other appliances; secondly, ‘traditional’, which, largely for historical reasons include cosmetics and photographic requisites; and thirdly ‘non-traditional’, which include a wide variety of articles which many pharmacists have found it profitable and convenient to sell in chemist’s shops. So most pharmacists act in a dual capacity, combining retail trading with their professional work. That pharmacists should be engaged in trade is regarded by many pharmacists as undesirable. But it is generally recognised that comparatively few chemist’s shops could survive without engaging in some degree of trading . .
In every profession of which I have any knowledge there is a code of conduct, written or unwritten, which makes it improper for members of the profession to engage in certain activities in which ordinary members of the public are quite entitled to engage. Normally this is regarded as a domestic matter within the profession. But it appears to me that if a member of a profession can show that a particular restriction on his activities goes beyond anything which can reasonably be related to the maintenance of professional honour or standards, the court must be able to intervene, and in the present case there is a question whether these restrictions are within the objects of the society. In Jenkin v. Pharmaceutical Society of Great Britain it was held that certain attempts to regulate trading by the members were ultra vires. But the respondent does not dispute that the society is entitled to regulate such trading activities in so far as that is reasonably necessary to achieve the society’s objects set out in the Charter. So it becomes a question whether these restrictions can properly be related to the maintenance or improvement of the status of the profession of pharmacy.
That these restrictions are in restraint of trade cannot be doubted. Any pharmacist who opens a new chemist’s shop can only sell professional or traditional goods in it, and in any existing chemist’s shop no new classes of non-traditional goods can be sold unless the council consents. This restraint may severely hamper the shopkeeper, and indeed it may make the business so unprofitable that the shop has to be closed. I need not consider the wider aspects of public interest, whether that might seriously inconvenience members of the public who wish to have prescriptions dispensed or to buy medicines.’

Lord Reid
[1970] AC 403
England and Wales
Cited by:
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .

Lists of cited by and citing cases may be incomplete.

Company, Commercial

Leading Case

Updated: 02 November 2021; Ref: scu.221578

Adams v Cape Industries plc: CA 2 Jan 1990

Proper Use of Corporate Entity to Protect Owner

The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in Texas in a suit by victims of asbestos. The defendant took no part in the United States proceedings and default judgments were entered. Actions on the judgment in England failed.
Held: The court declined to pierce the veil of incorporation. It was a legitimate use of the corporate form to use a subsidiary to insulate the remainder of the group from tort liability. There was no evidence to justify a finding of agency or facade.
There is an exception to the general rule, that steps which would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction ought not to be so regarded here, notwithstanding that if they had been steps taken in an English Court they might have constituted a submission to jurisdiction.
Slade LJ said: ‘Two points at least are clear. First, at common law in this country foreign judgments are enforced, if at all, not through considerations of comity but upon the basis of the principle explained thus by Parke B. in Williams v Jones
Secondly, however, in deciding whether the foreign court was one of competent jurisdiction, our courts will apply not the law of the foreign court itself but our own rules of private international law . .’ and ‘First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court ‘to summon the defendant before it and to decide such matters as it has decided:’ see Pemberton v Hughes [1899] 1 Ch. 781, 790 per Lindley M.R. Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit.
. . we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory. So long as he remains physically present in that country, he has the benefit of its laws, and must take the rough with the smooth, by accepting his amenability to the process of its courts.’
‘[Counsel for Adams] described the theme of all these cases as being that where legal technicalities would produce injustice in cases involving members of a group of companies, such technicalities should not be allowed to prevail. We do not think that the cases relied on go nearly so far as this. As [counsel for Cape] submitted, save in cases which turn on the wording of particular statutes or contracts, the court is not free to disregard the principle of Salomon v Salomon and Co Ltd [1897] AC 22 merely because it considers that justice so requires. Our law, for better or worse, recognises the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities.’

Slade, Mustill and Ralph Gibson LJJ
[1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786
England and Wales
Citing:
CitedPemberton v Hughes CA 1899
Lindley MR said: ‘There is no doubt that the courts of this country will not enforce the decisions of foreign courts which have no jurisdiction in the sense explained above – i.e., over the subject matter or over the persons brought before them . . . .
CitedWilliams v Jones 22-Jan-1845
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that . .
AppliedWoolfson v Strathclyde Regional Council HL 15-Feb-1978
The House considered the compensation payable on the compulsory purchase of land occupied by the appellant, but held under a company name.
Held: The House declined to allow the principal shareholder of a company to recover compensation for the . .
Appeal fromAdams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .

Cited by:
AppliedRakusens Ltd v Baser Ambalaj Plastik Sanayi Ticaret AS CA 11-Oct-2001
A company had sought and obtained leave to serve proceedings on a foreign based company, by serving documents on a local agent. The local agent was an independent contractor, who received and transmitted orders to the company, but who, themselves, . .
CitedMotorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
CitedRubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
CitedRubin and Another (Joint Receivers and Managers of The Consumers Trust) v Eurofinance Sa and Others CA 30-Jul-2010
. .
CitedPrest 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 . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
CitedPublic Joint Stock Company (‘Rosgosstrakh’) v Starr Syndicate Ltd and Others ComC 17-Jun-2020
Reserved judgment on the claimant’s application for summary judgment on its claim for recognition and enforcement of three judgments obtained in its favour in the Russian courts . .
CitedFetch.AI Ltd and Another v Persons Unknown Category A and Others ComC 15-Jul-2021
Cryptocurrency Action
The claimants sought damages and other remedies saying that the unknown defendants had obtained access to the private key guarding their crypto currency assets, and then sold them at an undervalue, acquiring substantial profits for themselves in . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Leading Case

Updated: 01 November 2021; Ref: scu.179853

Eckerle and Others v Wickeder Westfalenstahl Gmbh and Another: ChD 23 Jan 2013

By acting together, two shareholders had first refused the proposed dividend, and replaced the board. They then acquired fiurther shares and achieved a majority of more than 75%, sufficient to pass a special resolution, and proposed the cancellation of the company’s listing on the German Stock exchange, affecting the value of the remaining minority shares. Minority shareholders asked the court to reverse the de-listing decision and to order the purchase of their shares for a fair value. The majority shareholders now sought summary dismissal of the claims. The shareholdings were dematerialised and held as ‘Clearstream Interests’ and the defendants argued that on that basis the claimants did not hold the 5% of the shares necessary to make such an application.
Held: The application for summary dismissal of the claim succeeded. On its true construction, section 98 applied to the hoders of shares and not to holders of economic interests in shares: ‘a ‘shareholder’ or ‘the holder of a share’ (the terms are interchangeable) is one (and only one) whose name is registered in the register of members. There would in my view have to be an extremely strong reason to read the expression ‘the holders of not less in the aggregate than 5% in nominal value of the company’s issued share capital’ in a sense different from that indicated by the orthodox understanding of company law.’
Some of the claimants had originally voted for the resolution, and under section 98 were not permitted to seek the reveresal of the delisting.

Norris J
[2013] EWHC 68 (Ch), [2013] WLR(D) 24, [2014] BCC 1, [2014] 1 Ch 196, [2013] 3 WLR 1316
Bailii, WLRD
Companies Act 2006 97 98, Civil Procedure Rules 24
England and Wales
Citing:
CitedNational 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 . .
CitedFarstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
CitedRe Astec (BSR) Plc ChD 1999
Jonathan Parker J said: ‘The concept of ‘legitimate expectation’ . . can have no place in the context of public listed companies . . Its introduction in that context would, as it seems to me, in all probability prove to be a recipe for chaos. If the . .

Lists of cited by and citing cases may be incomplete.

Company

Leading Case

Updated: 01 November 2021; Ref: scu.470529

Leventis and Vafias v Malcon Navigation Co Ltd and another: ECJ 28 Jun 2017

Third Party not bound by jurisdiction clause

ECJ (Judicial Cooperation In Civil Matters Area of Freedom, Security and Justice : Judgment) Language of the case: Greek. for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001- Article 23 – Jurisdiction clause – Jurisdiction clause in a contract between two companies – Action for damages – Joint and several liability of representatives of one of those companies for tortious acts – Ability of the representatives to rely upon that clause

A Prechal P
ECLI:EU:C:2017:497, [2017] WLR(D) 428, [2017] EUECJ C-436/16
WLRD, Bailii
Council Regulation (EC) No 44/2001 23
European

Jurisdiction, Contract, Company

Updated: 01 November 2021; Ref: scu.588732

In Re Ritson: ChD 1898

Romer J
[1898] 1 Ch 667
England and Wales
Cited by:
Appeal fromIn 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] . .
CitedHighbury Pension Fund Management Company and Another v Zirfin Investments Ltd and Others ChD 14-Feb-2013
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) . .
CitedMcLean and Another v Trustees of The Bankruptcy Estate of Dent and Others ChD 26-Oct-2016
Marshalling your Dogs Equitably
Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of . .

Lists of cited by and citing cases may be incomplete.

Equity, Company

Leading Case

Updated: 31 October 2021; Ref: scu.570480

In Re Horbury Bridge Coal Iron and Waggon Co: CA 1879

Lord Jessell MR described the position at common law as regards the rights of members with different numbers of shares in the company, saying: ‘We first of all consider what may be termed the common law of the country as to voting at meetings. It is undoubted, and it was admitted by Sir Henry Jackson in his argument for the Respondents, that, according to such common law, votes at all meetings are taken by show of hands. Of course it may not always be a satisfactory mode – persons attending in large numbers may be small shareholders and persons attending in small numbers may be large shareholders, and therefore in companies provision is made for taking a poll, and when a poll is taken the votes are to be counted according to the number of shares . .’
At common law there is no need for a motion to be seconded at a company meeting, unless the custom and practice of the company as been so to do.
James LJ said that a chairman may himself move a motion.

Lord Jessell MR, James LJ
(1879) 11 ChD 109
England and Wales
Cited by:
CitedSugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .

Lists of cited by and citing cases may be incomplete.

Company

Leading Case

Updated: 31 October 2021; Ref: scu.536997

Marwaha and Others v Singh and Others: ChD 18 Feb 2013

The claimants sought injunctions and declaratory relief relating to: (a) a purported amendment to the constitution of the Guru Tegh Bahadur Gurdwara (‘the charity’); (b) the completion of a new list of members of the charity; and (c) for amendment of the scheme applicable to the charity so as to facilitate an election of a new executive committee for the charity.

Peling QC HHJ
[2013] EWHC B6 (Ch), [2013] PTSR D14
Bailii
Cited by:
Appeal fromMarwaha v Singh and Others CA 6-Nov-2013
. .

Lists of cited by and citing cases may be incomplete.

Charity, Company

Updated: 31 October 2021; Ref: scu.510168

Arif v Excess Insurance Group Ltd: 1987

1987 SLT 473
Scotland
Cited by:
CitedAnson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.573163

Mitchell v Scottish Eagle Insurance Ltd: 1997

1997 SLT 793
Scotland
Cited by:
CitedAnson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.573164

Yorkshire Miners’ Association and Others v Howden and Others: HL 14 Apr 1905

A miners’ association, registered under the Trade Union Act 1871, made certain payments from its funds to its members, who were out of employment, in circumstances which involved a direct contravention of the rules of the association. Held (Lords Davey and James of Hereford diss.) that an action was maintainable by an individual member of the association against the association and its officers for an injunction to restrain such a misapplication of the funds, inasmuch as the action was not a legal proceeding instituted with the object of directly enforcing an agreement for the application of the funds of a trade union to provide benefits to members, within the meaning of the Trade Union Act 1871, section 4, sub-section 3.
Lord Chancellor (Halsbury), Lords Macnaghten, Davey, James of Hereford, Robertson, and Lindley
[1905] UKHL 868, 42 SLR 868
Bailii
Trade Union Act 1871 4
England and Wales
Citing:
CitedChamberlains Wharf Limited v Smith CA 18-Jul-1900
The rules of an association, called the Tea Clearing House, the members of which were dock companies and tea warehouse keepers carrying on the business of warehousing tea in bond, provided (rule 11) that every member should charge on teas the . .
CitedSimpson v The Westminster Palace Hotel Company Limited 4-Jun-1860
. .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.621180

Blisset v Daniel: 1853

The court considered the limits on a power of expulsion from a partnership.
Held: (Page-Wood V-C) Construing the articles, two-thirds of the partners could expel a partner by serving a notice upon him without holding any meeting or giving any reason. But the power must be exercised in good faith: ‘the literal construction of these articles cannot be enforced’ and, after citing from the title ‘De Societate’ in Justinian’s Institutes, went on: ‘It must be plain that you can neither exercise a power of this description by dissolving the partnership nor do any other act for purposes contrary to the plain general meaning of the deed, which must be this, that the power is inserted, not for the benefit of any particular parties holding two-thirds of the shares but for the benefit of the whole society and partnership . . .’ In the Australian case of In re Wondoflex Textiles Pty. Ltd. [1951] V.L.R. 458, 467, Smith J. also contrasted the literal meaning of the articles with the true intentions of the parties: ‘It is also true, I think, that, generally speaking, a petition for winding up, based upon the partnership analogy, cannot succeed if what is complained of is merely a valid exercise of powers conferred in terms by the articles. . . . To hold otherwise would enable a member to be relieved from the consequences of a bargain knowingly entered into by him. . . . But this, I think, is subject to an important qualification. Acts which, in law, are a valid exercise of powers conferred by the articles may nevertheless be entirely outside what can fairly be regarded as having been in the contemplation of the parties when they became members of the company; and in such cases the fact that what has been done is not in excess of power will not necessarily be an answer to a claim for winding up. Indeed, it may be said that one purpose of [the just and equitable provision] is to enable the court to relieve a party from his bargain in such cases.’
Page-Wood V-C
(1853) 10 Hare 493
England and Wales
Cited by:
AppliedEbrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
CitedWood v Woad CEC 1-Jun-1874
Declaration, alleging that the plaintiff was a member of a mutual insurance society, which insured members against losses to ships entered and insured in the books of the society, on a deposit being made of 5l. per cent, on the amount insured ; that . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.180984

Re Richborough Furniture Ltd: ChD 21 Aug 1995

The court was faced with the question whether one of the three respondents, who was not a director of the company de jure, was nevertheless a director of the company de facto and as such liable to disqualification.
Held: A de facto director was as responsible as a formal director for disqualification purposes. However, in this case, a business consultant providing computer and other management services to a furniture-making company, was not a de facto director, despite his having undertaken extensive negotiations with creditors and performed some of the functions of a finance director. Where it is unclear that the acts of the person in question are referable to an assumed directorship or to some other capacity, the person in question is entitled to the benefit of the doubt
Timothy Lloyd QC said: ‘It seems to me that for someone to be made liable to disqualification under section 6 as a de facto director, the court would have to have clear evidence that he had been either the sole person directing the affairs of the company (or acting with others all equally lacking in a valid appointment, as in Morris v Kanssen [1946] AC 459) or, if there were others who were true directors, that he was acting on an equal footing with the others in directing the affairs of the company. It also seems to me that, if it is unclear whether the acts of the person in question are referable to an assumed directorship, or to some other capacity such as shareholder or, as here, consultant, the person in question must be entitled to the benefit of the doubt.’
Timothy Lloyd QC HHJ
Ind Summary 21-Aug-1995, [ 1996] BCC 155
Company Directors Disqualification Act 1986 6(1)
England and Wales
Citing:
CitedMorris v Kanssen HL 1946
The House considered the effect of provisions relating to the acts of directors in the 1929 Act. Lord Simonds said: ‘There is, as it appears to me, a vital distinction between (a) an appointment in which there is a defect or, in other words, a . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85860

Reynard v Secretary of State for Trade and Industry: ChD 5 Jul 2001

In the course of disqualification proceedings, a company director was found to have attempted to mislead the court. It was held that that finding could assist the court in finding that the director could be capable of misconduct. However that misconduct in court could not found a separate head of complaint under the Act, and nor could it justify an extension of the period of disqualification. The period of disqualification had to be fixed by reference to the conduct on which the original complaint was founded.
Times 10-Jul-2001, Gazette 05-Jul-2001
Company Directors Disqualification Act 1986 6(2)
England and Wales

Updated: 01 October 2021; Ref: scu.88759

Re Seagull Manufacturing Co Ltd (In Liquidation) (No 2): ChD 12 Jan 1994

A director resident abroad is still subject to UK jurisdiction.
Gazette 12-Jan-1994
England and Wales
Citing:
See AlsoRe Seagull Manufacturing Co Ltd ChD 3-May-1993
A company director who was resident overseas may be subject to disqualification proceedings. . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.85880

Practice Direction No 2 of 1995: Directors Disqualification: ChD 15 Dec 1995

General practice directions were given to ensure the speedy disposal of disqualification proceedings. The direction deals with matters arising and to be dealt with on the first summons hearing, the setting down and fixing the date of the trial, time estimates, any pretrial review, the arrangement of documents for the hearing, and the summary procedure, and for hearings outside London.
Sir Richard Scott VC
Ind Summary 01-Jan-1996, [1996] 1 All ER 442
Insolvent Companies (Disqualification of Unfit Directors) Propceedings Rules 1987
England and Wales

Updated: 01 October 2021; Ref: scu.84926

Re D’Jan of London Ltd; Copp v D’Jan: ChD 1 Sep 1993

Directors liability to compensate on insolvency for own negligence. ‘In my view, the duty of care owed by a director at common law is accurately stated in s 214(4) of the Insolvency Act 1986. It is the conduct of – ‘a reasonably diligent person having both – (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and (b) the general knowledge, skill and experience that that director has.”
Hoffmann LJ
Gazette 01-Sep-1993, [1994] 1 BCLC
England and Wales
Cited by:
CitedThe 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: 01 October 2021; Ref: scu.85754

NW Robbie and Co Ltd v Witney Warehouse: CA 1963

A floating charge effects an equitable assignment of the charged asset to the security holder.
Russell LJ
[1963] 1 WLR 1324
England and Wales
Cited by:
CitedUltraframe (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: 21 September 2021; Ref: scu.230292

Heyting v Dupont: CA 1964

The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
Held: This was ‘essentially a dispute between two discordant partners’ There was a general exception to the rule in Foss v Harbottle where the interests of justice so required, and service out of the jurisdiction was allowed: ‘I dare say that the rule in Foss v. Harbottle is a conception as unfamiliar in the Channel Islands as is the Clameur de Haro in the jurisdiction of England and Wales. But clearly this is a matter of procedure to be decided according to the law of the forum.’
Russell LJ
[1964] 1 WLR 843
England and Wales
Citing:
CitedFoss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .

Cited by:
CitedKonamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183217

Re William Porter and Co Ltd: 1937

Simonds J
[1937] 2 All ER 361
England and Wales
Citing:
Approved (Obiter)Moriarty v Regent’s Garage and Engineering Co Ltd KBD 1921
A company director sought payment of his directors fees of andpound;150 per annum where during the course of the year he had ceased to be a director. There was no allegation of impropriety on his part. The company’s articles provided that the . .

Cited by:
CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.215873

Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Man) Ltd: CA 8 Mar 1994

Where shares had been purchased at an artificially inflated price, after a fraudulent misrepresentation, the loss was calculated on the value they would have had on the market with full knowledge of the company’s affairs, absent that misrepresentation.
Gazette 08-Jun-1994, Times 08-Mar-1994, Gazette 20-Apr-1994
England and Wales
Cited by:
Appeal fromSmith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.89322

Lehtimaki v The Children’s Investment Fund Foundation (UK) and Others: CA 6 Jul 2018

A charity established by H and W wanted to transfer part of its fund to a new charity headed by W in return for her resignation from the first charity on the breakdown of the marriage. Court approval was sought for a transfer, but the remaining trustee (L) declined to say how he would cast his decisive vote. When giving approval, the court had made an order for L to vote in favour of the transaction. He now appealed against that order.
Held: His appeal succeeded. He had not threatened to act contrary to his fiduciary duty, since he had stated that he intended to act in what he considered would promote CIFF’s charitable purposes.
A member of the charity was part of the internal workings of the charity and his powers were exercisable for the benefit of the charity. However, that the position might be different in relation to companies with a large membership, which it called ‘mass-membership charities’: ‘It does not necessarily follow that members of charities such as the National Trust also have fiduciary obligations. Since we are not dealing with such an organisation, we do not need to decide whether their members are in the same position as CIFF’s. There may possibly, moreover, be scope for argument as to whether it is less reasonable to expect those belonging to mass-membership charities to act exclusively in the charities’ interests. That said, it is far from clear that it should be legitimate for members of, say, the National Trust to vote to obtain benefits for themselves from an entity with exclusively charitable objects.’
The members of a charitable company have no proprietary rights. As to the content of their fiduciary duty, it was unnecessary: ‘to rule on the precise scope of the fiduciary duties owed by members of CIFF. It is sufficient to say that a member of CIFF owes, in our view, a duty corresponding to that specifically imposed on members of CIOs by section 220 of the Charities Act 2011. In other words, the member must exercise the powers that he has in that capacity in the way that he decides, in good faith, would be most likely to further the purposes of CIFF. It should be stressed that this duty is subjective: in other words, that what matters is the member’s state of mind (compare eg Regentcrest plc v Cohen [2001] 2 BCLC 80, para 120, dealing with company directors).’
Lady Justice Gloster (Vice-President of the Court of Appeal, Civil Division), Lord Justice David Richards and Lord Justice Newey
[2018] EWCA Civ 1605, [2019] 1 All ER 845, [2019] Ch 139, [2018] WLR(D) 423, [2018] 2 BCLC 478, [2018] 3 WLR 1470, 2018] WTLR 491
Bailii,
England and Wales
Citing:
CitedIn re The French Protestant Hospital ChD 1951
The charity was an incorporated body created by a Royal Charter granted in 1718. The governor and directors sought to exercise a power conferred on them by the charter to amend the byelaws to enable the directors’ professional firms to be . .
CitedLiverpool and District Hospital for Diseases of the Heart v Attorney-General ChD 1981
Charitable Company is Trustee of Assets
The court was asked as to the distribution of surplus assets of a charitable company which was in winding up, and the question whether or not s 257 et seq. Companies Act 1948 applied, including s 265 which made provision for the distribution of . .
Appeal fromThe Children’s Investment Fund Foundation (UK) v Attorney General and Others ChD 9-Jun-2017
The court considered the propriety of a payment made by a charitable company to a director for her loss of office. The charity was to transfer a substantial sum to a new charity headed by the departing director.
Held: The court approved the . .

Cited by:
Appeal from (CA)Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.618970

The Children’s Investment Fund Foundation (UK) v Attorney General and Others: ChD 9 Jun 2017

The court considered the propriety of a payment made by a charitable company to a director for her loss of office. The charity was to transfer a substantial sum to a new charity headed by the departing director.
Held: The court approved the proposed transaction and ordered the remaining director to cast his decisive vote in favour of the transaction. In the ‘unique circumstances’ of this ‘extremely unusual’ case, the Grant was in the best interests of CIFF. The principal reasons given by the Chancellor were that the parties should not be allowed to renege on the deal they had made in good faith, that Ms Cooper would be contributing a further $40m to her new charity and that approving the Grant would bring finality and avoid further legal costs. He referred to the considerable talents of Ms Cooper. The Chancellor expressly stated that, while he had come to a clear conclusion that he should approve the Grant, he was ‘not saying that no reasonable trustee or fiduciary could disagree with [his] view’ that the Grant was in the best interests of CIFF or that ‘anyone who disagreed with [his] view would automatically be acting in bad faith’
Section 217 of the 2006 Act applies as much to charitable companies as it does to ordinary trading companies.
Sir Geoffrey Vos Ch
[2017] EWHC 1379 (Ch), [2017] WLR(D) 390, [2018] 1 BCLC 677, [2018] 2 WLR 259, [2018] Ch 371, [2018] 2 All ER 504
Bailii, WLRD
Companies Act 2006 215 217
England and Wales
Citing:
CitedIn re The French Protestant Hospital ChD 1951
The charity was an incorporated body created by a Royal Charter granted in 1718. The governor and directors sought to exercise a power conferred on them by the charter to amend the byelaws to enable the directors’ professional firms to be . .
CitedVon Ernst and Cie SA v Inland Revenue Commissioners CA 1979
The assets of a corporate charity were held on charitable trusts: ‘We were referred to certain authorities which give support to the view that a company incorporated for exclusively charitable purposes is in the position of a trustee of its funds or . .
CitedLiverpool and District Hospital for Diseases of the Heart v Attorney-General ChD 1981
Charitable Company is Trustee of Assets
The court was asked as to the distribution of surplus assets of a charitable company which was in winding up, and the question whether or not s 257 et seq. Companies Act 1948 applied, including s 265 which made provision for the distribution of . .
CitedPender v Lushington CA 1877
After stating that the Court would not restrain the exercise of certain votes by members of a company merely because the holder of the votes had a motive for voting them which the Court might not approve, his Lordship said: ‘I am confirmed in that . .
CitedThe North-West Transportation Company and James Hughes Beatty v Henry Beatty and Others PC 21-Jul-1887
(Canada) . .
CitedAllan v Gold Reefs of West Africa Ltd CA 19-Feb-1900
The company had altered its articles so as to give itself a lien on paid up shares in respect of the failure of the shareholder to pay calls on other shares which had not been fully paid up. The effect of the amendment was to alter the contractual . .
CitedArbuthnott v Bonnyman and Others CA 20-May-2015
Appeal from refusal of unfair prejudice petition.
After listing cases: ‘I would extract from them the following principles:
(1) The limitations on the exercise of the power to amend a company’s articles arise because, as in the case of . .
CitedNorthern Counties Securities Ltd v Jackson and Steeple Ltd ChD 1974
Walton J reiterated that, when a shareholder is voting for or against a particular resolution, he is voting as a person owing no fiduciary duty to the company and who is exercising his own right of property to vote as he thinks fit. . .

Cited by:
Appeal fromLehtimaki v The Children’s Investment Fund Foundation (UK) and Others CA 6-Jul-2018
A charity established by H and W wanted to transfer part of its fund to a new charity headed by W in return for her resignation from the first charity on the breakdown of the marriage. Court approval was sought for a transfer, but the remaining . .
At First InstanceLehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.588022

The Citizens Life Assurance Company Limited v Brown: PC 6 May 1904

(New South Wales) A malicious libel was alleged. The life assurance company was vicariously liable in respect of a libel contained in a circular sent out by a person who was employed by the company under a written agreement as its ‘superintendent of agencies’. By the terms of the agreement that person was to devote his whole time to furthering the company’s business and was to be paid a salary weekly as well as a commission on policies procured by him.
Held: He was a servant of the company for whose actions the company was liable. Once companies are recognised by the law as legal persons, they are liable to have the mental states of agents and employees such as dishonesty or malice attributed to them for the purpose of establishing civil liability.
Lord Lindley said: ‘If it is once granted that corporations are for civil purposes to be regarded as persons, ie as principals acting by agents and servants, it is difficult to see why the ordinary doctrines of agency and of master and servant are not to be applied to corporations as well as to ordinary individuals.’
Lord Lindley
[1904] UKPC 20, [1904] AC 423
Bailii
Australia
Citing:
RejectedAbrath v North Eastern Railway Co HL 15-Mar-1886
The plaintiff had brought an action against the company of malicious prosecution. It was rejected by the jury and again on appeal.
Held: The appeal failed. In an action for damages for the tort of malicious prosecution one of the elements of . .

Cited by:
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.419585

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 the Aberdeen Railway Company. The contract was partly performed but, having taken delivery of about two-thirds of the iron chairs, the Aberdeen Railway Company refused to accept any more. The defendant sought to enforce the contract or for damages for breach.
Held: The railway company’s defence succeeded on the grounds that Mr Blaikie’s self-dealing rendered the contract voidable at its suit.
The equitable rule as to the accountability of directors is not limited to cases in which there is a maturing business opportunity but extends to cases in which the director either has or can have a personal interest conflicting, or which possibly may conflict, with the interests of whose whom he is bound to protect. ‘This, therefore, brings us to the general question, whether a Director of a Railway Company is or is not precluded from dealing on behalf of the Company with himself, or with a firm in which he is a partner. The Directors are a body to whom is delegated the duty of managing the general affairs of the Company. A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation whose affairs they are conducting. Such agents have duties to discharge of a fiduciary nature towards their principal. And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into.’
and ‘Mr Blaikie was not only a Director, but (if that was necessary) the Chairman of the Directors. In that character it was his bounden duty to make the best bargains he could for the benefit of the Company. While he filled that character, namely, on the 6th of February, 1846, he entered into a contract on behalf of the Company with his own firm, for the purchase of a large quantity of iron chairs at a certain stipulated price. His duty to the Company imposed on him the obligation of obtaining these chairs at the lowest possible price. His personal interest would lead him in an entirely opposite direction, would induce him to fix the price as high as possible. This is the very evil against which the rule in question is directed, and I here see nothing whatever to prevent its application. I observe that Lord Fullerton seemed to doubt whether the rule would apply where the party whose act or contract is called in question is only one of a body of Directors, not a sole trustee or manager. But, with all deference, this appears to me to make no difference. It was Mr Blaikie’s duty to give his co-Directors, and through them to the Company, the full benefit of all the knowledge and skill which he could bring to bear on the subject. He was bound to assist them in getting the articles contracted for at the cheapest possible rate. As far as related to the advice he should give them, he put his interest in conflict with his duty, and whether he was the sole Director or only one of many, can make no difference in principle. The same observation applies to the fact that he was not the sole person contracting with the Company; he was one of the firm of Blaikie Brothers, with whom the contract was made, and so interested in driving as hard a bargain with the Company as he could induce them to make.’
Lord Cranworth LC
(1854) 1 Macq 461, (1854) 17 D (HL) 20
Scotland
Cited by:
CitedNess Training Limited v Triage Central Ltd and c ScHC 27-Aug-2001
The complainant sought a contract to deliver services to the New Deal system in Scotland as part of a joint venture. They incorporated in England, but were then told they needed to be a Scottish company. A new company was established in Scotland, . .
CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
CitedUltraframe (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 . .
CitedTowers v Premier Waste Management Ltd CA 28-Jul-2011
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. . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.180412

Prudential Assurance Company Ltd v Revenue and Customs: SC 25 Jul 2018

PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be set by reference to the overseas tax actually paid, as HMRC submit, or by reference to the foreign nominal tax rate (‘FNR’), as PAC submits?
Held: HMRC Appeal dismissed: credit for foreign dividends should be by reference to the FNR, rather than by reference to the actual or effective tax incurred overseas.
Issue II: Was compound interest payable on tax levied in breach of EU law, on the basis that HMRC were unjustly enriched by the opportunity to use the money in question?
Held: HMRC’s appeal Allowed. Sempra Metals Ltd v IRC failed to allow for several features, and there were later inconsistent developments and cases.
Issue III: does a claim in restitution lie to recover lawful ACT which was set against unlawful mainstream corporation tax?
Held: No. HMRC’s appeal was allowed. Setting the unlawful MCT against the lawful ACT was not enough to qualify as a ‘San Giorgio’ claim.
Following Issue I, Issue IV did not arise.
Issue V(a): where ACT from a pool including unlawful and lawful ACT is set against an unlawful MCT liability, is the unlawful ACT regarded as a pre-payment of the unlawful MCT liability or is the ACT so utilised regarded as partly lawful and unlawful pro rata?
Held: PAC’s cross-appeal was allowed. . Unlawful ACT is set first against unlawful MCT. Because unlawful MCT is a nullity, the unlawful ACT is recoverable unless it has been set against a lawful MCT charge.
Issue V(b): Is domestic FII when carried back to an earlier quarter, to be treated as having been applied to relieve the lawful and unlawful ACT pro rata, or only lawful ACT?
Held: PAC’s cross-appeal allowed. Domestic FII carried back to an earlier quarter is to be applied to relieve only lawful ACT. HMRC’s pro rata approach would deprive a company of the tax credit at the FNR required under EU law.
Lord Mance, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hodge
[2018] UKSC 39, [2018] WLR(D) 527, [2018] STC 1657, [2019] AC 929, [2018] 3 WLR 652, [2018] BTC 31, [2018] STI 1499, UKSC 2016/0102
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Feb 20 am Video, SC 2018 Feb 20 pm Video, SC 2018 Feb 21 am Video, SC 2018 Feb 21 pm Video
Income and Corporation Taxes Act 1988 231(1) 238(1) 239
England and Wales
Citing:
At CAThe Prudential Assurance Company Ltd v HM Revenue and Customs CA 19-Apr-2016
The issues on this appeal all relate to what have been called ‘portfolio holdings’; that is to say dividends paid on shares in foreign companies held as investments, where the investor holds less than 10 per cent of the voting power in the company . .
CitedMetallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
CitedTest Claimants In The FII Group Litigation v CIR ECJ 12-Dec-2006
ECJ (Opinion of Geelhoed AG) Interpretation of Articles 43 and 56 EC and Articles 4(1) and 6 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent . .
CitedAmministrazione Delle Finanze Dello Stato v Spa San Giorgio ECJ 9-Nov-1983
ECJ Questions submitted for a preliminary ruling – reference to the court – right of every national court – stage of the proceedings before the national court – nature of the decision to be given by the national . .
CitedThe Test Claimants In The CFC and Dividend Group Litigation v Inland Revenue ECJ 23-Apr-2008
First subparagraph of Article 104(3) of the Rules of Procedure – Freedom of establishment – Free movement of capital – Direct taxation – Corporation tax – Share dividends paid to a resident company by a non-resident company – Rules on controlled . .
CitedHaribo Lakritzen Hans Riegel BetriebsgmbH and Another v Linz ECJ 10-Feb-2011
Free movement of capital – Corporation tax – Exemption of nationally-sourced dividends – Exemption of foreign-sourced dividends only if certain conditions are complied with – Application of an imputation system to non’exempt foreign’sourced . .
CitedTest Claimants In the FII Group Litigation v HM Revenue and Customs ChD 27-Nov-2008
The claimants were companies with parent companies in the UK and other subsidiaries not so resident, both in the EU and outside. They complained of the differences in treatment under corporation tax of the payment of dividends between the . .
CitedTest Claimants in the FII Group Litigation v Commissioners of Inland Revenue and Another ECJ 13-Nov-2012
Articles 49 TFEU and 63 TFEU – Payment of dividends – Corporation tax – Case C-446/04 – Test Claimants in the FII Group Litigation – Interpretation of the judgment – Prevention of economic double taxation – Equivalence of the exemption and . .
Overruled in PartSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
CitedWestdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedMorris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
CitedFleming (T/A Bodycraft) v Revenue and Customs HL 23-Jan-2008
The transitional rules introducing time limits for failing to deduct VAT inputs made insufficient allowance for the decisions in Marks and Spencer and Grundig.
Held: Lord Hope said: ‘To be compatible with EU law, taxpayers were entitled to be . .
CitedLittlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
CitedRevenue 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 . .
CitedLittlewoods Retail Ltd and Others v HM Revenue and Customs (No 2) ChD 28-Mar-2014
The claimants had recovered very substantial overpayments made of VAT. They sought recovery of compound interest. The ECJ, on reference, said that this was a matter for national law.
Held: The claim succeeded. The sections of the 1994 Act were . .
CitedLittlewoods Ltd and Others v HM Revenue and Customs CA 21-May-2015
The company sought repayment by way of restitution for overpaid taxes. The tax had been repaid, but only as simple interest, and not compounded. Both parties now appealed from a decision that the Act did not apply to exclude under sections 78 and 80 . .
CitedMoses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
CitedWalker v Constable 20-Jun-1798
. .
CitedBanque 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 . .
CitedWalker v Constable 20-Jun-1798
. .
CitedDepcke v Munn And Another 4-Feb-1828
Lord Tenterden CJ said: ‘the courts have held again and again that interest cannot be recovered in an action for money had and received . . This has been decided so often, that I cannot now venture to allow the question to be agitated.’ . .
CitedFibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
CitedBP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
CitedRiches v Westminster Bank Ltd 1947
The amount of interest payable on compulsory purchase of land depends upon the value given to the land and the length of the period from the time of entry until reinstatement, the period during which the claimant is dispossessed. During that time, . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.620139

F and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2): ChD 14 Jul 2011

The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal in relation to the transactions which the agent enters into on the principal’s behalf’.
Sales J said: ‘Fiduciary obligations may arise in a wide range of business relationships, where a substantial degree of control over the property or affairs of one person is given to another person. Very often, of course, a contract may lie at the heart of such a business relationship, and then a question arises about the way in which fiduciary obligations may be imposed alongside the obligations spelled out in the contract. In making their contract, the parties will have bargained for a distribution of risk and for the main standards of conduct to be applied between them. In commercial contexts, care has to be taken in identifying any fiduciary obligations which may arise that the court does not distort the bargain made by the parties: see the observation by Lord Neuberger of Abbotsbury writing extrajudicially in ‘The Stuffing of Minerva’s Owl? Taxonomy and Taxidermy in Equity’ [2009] CLJ 537, 543 and Vercoe v Rutland Fund Management Ltd [2010] EWHC 424 (Ch) at [351]-[352]. The touchstone is to ask what obligations of a fiduciary character may reasonably be expected to apply in the particular context, where the contract between the parties will usually provide the major part of the contextual framework in which that question arises.’
Sales J
[2011] EWHC 1731 (Ch), [2012] 3 WLR 10, [2012] Ch 613
Bailii
Limited Liability Partnerships Act 2000 6(1)
England and Wales
Citing:
See AlsoF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another ChD 14-Jul-2011
The parties applied to the court for a conclusion to their action without the draft judgment being handed down and published, they having reached agreement.
Held: It was within the judge’s discretion and in this in the public interest for the . .

Cited by:
See AlsoF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another ChD 28-Oct-2011
. .
See AlsoF and C Alternative Investments (Holdings) Ltd and Others v Barthelemy and Another CA 22-Jun-2012
The parties, former partners in a limited liability partnership providing investment funds management, had been involved in protracted and bitter litigation. The appellant now challenged the award of indemnity costs. . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
CitedLehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.441822

Criterion Properties Plc v Stratford UK Properties Llc and others: ChD 27 Mar 2002

Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to prevent such a takeover. It was asserted that the agreement constituted dishonest assistance by the defendant in entering into an agreement in excess of the board’s powers.
Held: There was a triable issue that the put option created was in excess of the power of the board. However, the agreement was ‘motivated not by a desire to advance or protect the commercial interests of Criterion but from a desire contingently to cripple those interests so as to deter an unwanted predator. ‘ and so was unenforceable.
The Hon Mr Justice Hart
[2002] EWHC 496 (Ch)
Bailii
Limited Partnership Act 1907
England and Wales
Citing:
Appealed toCriterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
CitedSavoy Corp Ltd v Development Underwriting Ltd 1963
(Australia) The court discussed the extent of the director’s powers to arrange the company to prevent a take over: ‘It would seem to me to be unreal in the light of the structure of modern companies and of modern business life to take the view that . .
CitedMills v Mills 1938
(High Court of Australia) Where the main purpose of the directors’ resolution (in this case to increase the share base) is to benefit the company it matters not that it incidentally also benefits a director.
Dixon J pointed out the difficulties . .
CitedHoward Smith Limited v Ampol Petroleum Limited PC 14-Feb-1974
(New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued . .
CitedTeck Corporation Ltd v Millar 1972
The court discussed the validity of steps which might be taken by a company director to resist a take-over. Berger J said: ‘So how wide a latitude ought the directors to have? If a group is seeking to obtain control, must the directors ignore them? . .
CitedBelmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
CitedRolled Steel Products (Holdings) Ltd v British Steel Corporation and Others CA 1986
The plaintiff company had guaranteed borrowings, using powers within the memorandum of association, but for purposes which were held to be improper, because they were not in the interests of the plaintiff company itself. One issue was whether the . .
CitedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
CitedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ChD 1999
Chief Akindele agreed in 1985 with ICIC Overseas to invest US$10m in the purchase of 250,000 shares of BCCI Holdings, and to hold the shares for two years. If he wanted to sell the shares after the expiry of two years and up to five years from the . .
CitedIn re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
CitedEagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd ChD 28-Sep-1994
A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a . .

Cited by:
Appeal fromCriterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Appealed toCriterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.170060

Scottish Co-operative Wholesale Society Ltd v Meyer: HL 1959

Valuation of Shares on Order for Purchase

The Co-operative Society had formed a 51 per cent-owned subsidiary to manufacture rayon at a time of strict post-war controls. The other shares were owned by two outside directors with skill and experience in the trade. When these directors declined to sell their shares to the society it began switching its business to a new department within its own organisation. The subsidiary’s business declined and its shares fell heavily in value. On the directors’ petition the Court of Session had ordered the society to buy the directors’ shares at ‘what would have been the value of the shares at the commencement of the proceedings had it not been for the oppressive conduct of which complaint was made’.
Held: The House dismissed the Society’s appeal. The grant of relief was in the judge’s discretion. Viscount Simonds, Lord Keith and Lord Denning all specifically approved a valuation which was both back-dated to the presentation of the petition and adjusted to compensate for the past oppression.
An oppressing shareholder was directed to purchase the shares of the oppressed shareholder: (Lord Denning) ‘One of the most useful orders mentioned in the section — which will enable the Court to do justice to the injured shareholders — is to order the oppressor to buy their shares at a fair price: and a fair price would be, I think, the value which the shares would have had at the date of the petition, if there had been no oppression. Once the oppressor has bought the shares, the company can survive. It can continue to operate. That is a matter for him. It is, no doubt, true that an order of this kind gives to the oppressed shareholders what is in effect money compensation for the injury done to them: but I see no objection to this. The section gives a large discretion to the Court and it is well exercised in making the oppressor make compensation to those who have suffered at his hands.’
Viscount Simonds, Lord Keith and Lord Denning
[1958] 3 All ER 66, [1959] 3 WLR 404, [1959] AC 324
Companies Act 1948 210
Scotland
Cited by:
AppliedColeman Taymar Ltd and Others v Oakes and Another ChD 19-Jul-2001
A company director owed a fiduciary duty to his company, but that could not, of itself, prevent him making arrangements to set up in competition once his employment by the company came to an end, save only for acts during the period of his . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedBonham v Crow and others CA 13-Dec-2001
The petitioner complained of unfair prejudice in the way the company had been operated, and sought an order that his shares be bought out. However the judge found that the net value of the company was negative and the shares worthless. The judge had . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.181230

Vercoe and Others v Rutland Fund Management Ltd and Others: ChD 5 Mar 2010

Claim in respect of a management buy-in transaction in relation to a company which carried on business as a pawnbroker.
Sales J
[2010] EWHC 424 (Ch), [2010] WLR (D) 68, [2010] Bus LR D141
Bailii, WLRD
England and Wales
Cited by:
CitedMorris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.402543

Housemaker Services Ltd v Cole and Another: ChD 7 Apr 2017

Part 8 Claim seeking a direction from the Court that the period of 608 days from November 2014 to July 2016, during which it was struck off the register and thus ceased to exist, should be discounted for the purposes of limitation in relation to the Claimant’s claim against the Defendants in respect of unpaid invoices delivered for building services.
Matthews HHJ
[2017] EWHC 753 (Ch)
Bailii
Companies Act 2006 1028(3)
England and Wales
Cited by:
See AlsoHousemaker Services Ltd and Another v Cole and Another ChD 26-Apr-2017
Appeal from limitation direction, and third party costs order: ‘in order to make it just to order a director to pay the costs of unsuccessful company litigation, it is necessary to show something more. This might be, for example, that the claim is . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.581734

Housemaker Services Ltd and Another v Cole and Another: ChD 26 Apr 2017

Appeal from limitation direction, and third party costs order: ‘in order to make it just to order a director to pay the costs of unsuccessful company litigation, it is necessary to show something more. This might be, for example, that the claim is not made in good faith, or for the benefit of the company, or it might be that the claim has been improperly conducted by the director.’
Paul Matthews HHJ
[2017] EWHC 924 (Ch)
Bailii
Companies Act 2006 1028
England and Wales
Citing:
See AlsoHousemaker Services Ltd v Cole and Another ChD 7-Apr-2017
Part 8 Claim seeking a direction from the Court that the period of 608 days from November 2014 to July 2016, during which it was struck off the register and thus ceased to exist, should be discounted for the purposes of limitation in relation to the . .

Cited by:
CitedGoknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.583680

Arklow Investments Ltd v Maclean: 19 May 2000

(High Court of New Zealand) The court considered the potential personal responsibility of a directors for costs incurred by the company in litigation: ‘Where a person is a major shareholder and dominant director in a company which brings proceedings, that alone will not justify a third party costs order. Something additional is normally warranted as a matter of discretion. The critical element will often be a fresh injection of capital for the known purpose of funding litigation . . the overall rationale [is] that it is wrong to allow someone to fund litigation in the hope of gaining a benefit without a corresponding risk that that person will share in the costs of the proceedings if they ultimately fail.’
Fisher J
(Unreported) 19 May 2000
England and Wales
Citing:
See AlsoArklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .

Cited by:
CitedBE Studios Ltd v Smith and Williamson Ltd ChD 2-Dec-2005
The claimant company had failed in its action. The court was asked to make a costs order personally against the principal director of the claimant who had controlled the litigation and funded it. He responded that no impropriety had been shown on . .
CitedMedia Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
CitedGoknur v Aytacli CA 13-Jul-2021
Third Party Costs – Director of Insolvent Company
(Organic Village) The Court considered the circumstances Limited in which a director and shareholder of an insolvent company may be personally liable for some or all of that company’s costs liabilities incurred in unsuccessful litigation, pursuant . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.237246

Clough Mill Ltd v Martin: CA 1984

The plaintiff had supplied yarn to a company H on terms that the goods were to remain its property until paid for in full, although H was granted the power to sell the goods or use them for the purpose of manufacturing products. The terms also provided that if any payment were overdue the plaintiff could recover or resell the goods and enter H’s premises for that purpose. When the defendant was appointed receiver of H the plaintiff informed him that it wished to repossess the unused yarn and asked to be allowed to collect it. The defendant refused on the grounds that the retention of title clause amounted to a charge to secure payment and was void for non-registration.
Held: Property in the yarn had not passed to H, which could not therefore have created a charge in favour of the plaintiff. Robert Goff LJ, and to a lesser extent Oliver LJ, assumed that the contract under which the yarn had been supplied was a contract for the sale of goods to which the Sale of Goods Act applied.
Sir John Donaldson MR, Oliver and Robert Goff LJJ
[1985] 1 WLR 111, (1984) 128 SJ 850, [1984] 3 All ER 962, (1985) 82 LS Gaz 116
England and Wales
Citing:
Appeal fromClough Mill Ltd v Martin 1984
. .

Cited by:
CitedPST Energy 7 Shipping Llc Product Shipping and Trading SA v OW Bunker Malta Ltd and Others CA 22-Oct-2015
The oil owners had contracted for its transport with OWBM aboard Res Cogitans under standard terms which would allow the captain to use the oil for navigation before transfer of the title in the oil. The court was now asked whether the agreement . .

These lists may be incomplete.
Updated: 14 July 2021; Ref: scu.617854

Phillips and others v Symes and others: ChD 16 Oct 2006

Peter Smith J
[2006] EWHC 2595 (Ch)
Bailii
England and Wales
Citing:
See AlsoPhillips and Another v Robin James Symes and Robin Symes Ltd ChD 9-Jul-2001
English proceedings were issued to claim against a partnership. Simultaneously proceedings were issued in Greece, but the Greek proceedings were served on the London parties first. The plaintiffs in Greece asked the English court to issue a stay of . .
See AlsoPhillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
See AlsoPhillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
See AlsoPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
See AlsoPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq etc ChD 20-Oct-2004
. .
See AlsoSymes v Phillips and others CA 6-May-2005
. .
See AlsoSymes v Phillips and others CA 19-May-2005
The applicant was in contempt of court. He successfully appealed a sentence of two years imprisonment, with the sentence being reduced to one year. Legally aided, he sought his costs from the claimant. The claimant replied that their part was only . .
See AlsoPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis) v Symes (A Bankrupt), Nussberger, Galerie Nefer Ag, Geoff Rowley ChD 19-Aug-2005
The court allowed the appellant’s application to dispense with service of a claim form under the rule. The High Court became seised of the matter as at 19 January 2005. Further directions were given. . .
See AlsoPhillips and Another v Symes and Others (No 6) CA 19-May-2006
Proceedings were issued in England for service on the defendant in Switzerland, but because of an error by the Swiss Court were not properly served. Proceedings were then issued in Sitzerland, and seisin was claimed for the Swiss Court. The claimant . .
See AlsoPhillips and others v Symes and others ChD 12-Jul-2006
. .

Cited by:
See AlsoPhillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.263679

In re Cumana Ltd: CA 1986

The court considered the date at which shares are to be valued in a possible order for one set of shareholders to buy the shares of another.
Held: The choice was a matter of the judge’s discretion. Where a minority shareholder has a petition on foot and there is a general fall in the market, the court may in fairness to the claimant have the shares valued at an early date, especially if it strongly disapproves of the majority shareholder’s prejudicial conduct.
Lawton LJ said: ‘the shares had gone down in value between the date of the petition and the date of judgment. They might have gone up. The reason which the judge gave, on the facts of this case, for choosing the date of the petition was a sound one, viz:
‘The date of the petition is the date on which the petitioner elects to treat the unfair conduct of the majority as in effect destroying the basis on which he agreed to continue to be a shareholder, and to look to his shares for his proper reward for participation in a joint undertaking.’
I would stress, however, that the choice of a date for valuation in cases of this kind is a matter for the exercise of the trial judge’s discretion. If, for example, there is before the court evidence that the majority shareholder deliberately took steps to depreciate the value of shares in anticipation of a petition being presented, it would be permissible to value the shares at a date before such action was taken.’
and ‘What the judge was deciding was the amount of the compensation which Mr Bolton should pay Mr Lewis for the wrong he had done him . . The fact that a wrongdoer is impecunious is no reason why judgment should not be given against him for the amount of compensation due to his victim. What Mr Lewis should do to get money out of Mr Bolton, claiming, as he still does, that he is impecunious, is a matter from him to decide, not the court.’
Nicholls LJ said: ‘Counsel for Mr Bolton also attacked the judge’s choice of valuation date, which was nearly a year before the date when he made his order. Prior to the hearing, Mr Lewis had offered his shares to Mr Bolton for pounds 1,700,000, but he did not offer to sell them at their value at the date on which the petition was issued, and the price ought not to have been fixed at a date earlier than the date when it became apparent that the shares had to be sold. As it was, the price fixed by the judge was about pounds 25m more than the value of the shares at the time of the hearing. In my view, this attack also must fail. The choice of the valuation date was a matter for the judge’s discretion. The reasons he gave for choosing the earlier date seem to me sufficient to support his conclusion on this, albeit the result was a severe form of order.’
and ‘The form which the relief to be granted under s. 75 should take is discretionary. If, in a particular case, the court considers that a respondent who has wrongfully extracted substantial sums of money from a company should make recompense by paying a stated sum to the petitioner, or to the company, I do not see why such an order should not be made even if the respondent does not have and is unlikely to obtain the necessary means; although, no doubt, his financial position would be a matter to be taken into account by the court in deciding upon the form of relief. If that is correct, I do not see why the position is in principle any different in the case of a purchaser of shares: the respondent is being ordered to pay a fixed sum of money, and shares (like other forms of property) may subsequently fall or rise in value. Of course, in considering whether to make a purchase order, the court will have regard to the means of the respondent and also, if he will need to have recourse to the property which is the subject of the purchase order, or other property, to obtain the purchase price, to the likelihood of him being able to realise or obtain money on the security of that property. But these are questions of degree, and the weight to be attached to these considerations will depend on all the circumstances of the case. They are matters for the discretion of the trial judge.’
If there is a dispute as to which party should be ordered to buy out the other, the court has to decide who has the better claim on the company. Although a petitioner’s conduct may have a bearing on the relief to be granted, the mere existence of fault on the petitioner’s part is not normally a reason to deprive it of the benefit of a buy-out order. Since fairness is the touchstone, this may dictate that time should be given to enable the respondents to purchase the shares and to discharge shareholder loans.
Lawton LJ, Glidewell LJ, Nicholls LJ
(1986) BCC 99, [1986] BCLC 430
England and Wales
Cited by:
CitedBonham v Crow and others CA 13-Dec-2001
The petitioner complained of unfair prejudice in the way the company had been operated, and sought an order that his shares be bought out. However the judge found that the net value of the company was negative and the shares worthless. The judge had . .
CitedKohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
CitedMacom Gmbh v Bozeat and Others ChD 21-Jun-2021
Order regulating company’s affairs
COMPANY – Unfair prejudice – Petitioner 60% shareholder – Respondents 40% shareholders – Alleged breaches of director’s duties and failures to observe Shareholders’ Agreement – Undermining company’s corporate governance – Appropriate remedy – . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.241638

Corporation of Sheffield v Barclay and Others: HL 3 Jul 1905

Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, of course, it is a breach of their duty and a wrong to the existing holders of stock for the appellants to remove their names and register the stock in the name of the proposed transferee if the latter has, in fact, no title to require the appellants to do so. I am further of opinion that where a person invested with a statutory or common law duty of a ministerial character is called upon to exercise that duty on the request, direction, or demand of another (it does not seem to me to matter which word you use), and without any default on his own part acts in a manner which is apparently legal but is, in fact, illegal and a breach of the duty, and thereby incurs liability to third parties, there is implied by law a contract by the person making the request to keep indemnified the person having the duty against any liability which may result from such exercise of the supposed duty. And it makes no difference that the person making the request is not aware of the invalidity in his title to make the request, or could not with reasonable diligence have discovered it.’ and as to Dugdale v Lovering: ‘I am also of opinion that the authority keeping a stock register has no duty of keeping the register correct which they owe to those who come with transfers. Their only duty (if that be the proper expression) is one which they owe to the stockholders who are on the register. This point was decided by all the learned Judges who took part in the decision of the first case of Simm -v- Anglo-American Telegraph [5 QBD 188]. I will content myself with quoting the language of Cotton L.J. [at 214] ‘The duty of the company is not to accept a forged transfer, and no duty to make inquiries exists towards the person bringing the transfer. It is merely an obligation upon the company to take care that they do not get into difficulties in consequence of their accepting a forged transfer, and it may be said to be an obligation towards the stockholder not to take the stock out of his name unless he has executed a transfer; but it is only a duty in this sense, that unless the company act upon a genuine transfer they may be liable to the real stockholder.’.’
Authorised irredeemable stock in Sheffield Corporation was registered in the joint names of Timbrell and Honnywill. Timbrell executed an appropriate form of transfer of the stock in his own name but forged the signature of Honnywill. The forged transfer was in favour of a bank, Barclay’s, as a lender. The bank sent the forged transfer to the Corporation for registration and the Corporation acted upon that request. The bank was thus given a stock certificate and, before or after that, the bank’s stock was sold on to holders for value to whom, the Bank having returned its certificate to the Corporation, the Corporation gave fresh stock certificates. Timbrell died and Honnywill then discovered the fraud and successfully insisted in proceedings that the stock of which he had been defrauded should be restored to him, as it was, at the Corporation’s expense. The Corporation then sued the bank for an indemnity. Had the Corporation any remedy against the bank which had asked it to act upon the forged transfer?
Held: The corporation was entitled to an indemnity from the bank. Adopting Dugdale -v- Lovering: ‘The principle insisted upon by Mr Cave in his argument quoted above has been undoubtedly sanctioned as part of the law by several old decisions, and I think the principle as enunciated is well-established.’
Where a person invested with a statutory or common law duty of a ministerial character is called upon to exercise that duty on the request, direction, or demand of another, and without any default on his own part acts in a manner which is apparently legal, but is in fact illegal and a breach of the duty, and thereby incurs liability to third parties, there is implied by law a contract by the person making the request to keep indemnified the person having the duty against any liability which may result from suet exercise of the supposed duty. And it makes no difference that the person making the request is not aware of the invalidity in his title to make the request. In an action by the corporation against C and Co, the latter were bound to indemnify the former. Judgment of the Court of Appeal reversed.
Lord Chancellor (Halsbury), Lords Davey and Robertson
[1905] AC 392, [1905] UKHL 556, 43 SLR 556
Bailii
England and Wales
Citing:
ApprovedDugdale v Lovering 1875
The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .

Cited by:
CitedCadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .
AdoptedStanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation PC 1980
The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee . .
CitedDowns and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .

These lists may be incomplete.
Updated: 11 July 2021; Ref: scu.621182

Estera Trust (Jersey) Ltd and Another v Singh and Others: ChD 5 Jul 2018

Re Edwardian Group Ltd
Claim for relief under sections 994-996 of the Companies Act 2006 on the ground that the affairs of the Company have been and are being conducted in a manner unfairly prejudicial to their interests as members of the Company.
Held: The misleading and inadequate terms in which the shareholders had been informed of certain findings of the company had been unfairly prejudicial to all of the shareholders, as being contrary to the good administration of the company and the interests of the shareholders in having matters of complaint about a director of the company fairly and fully investigated and reported on.
Fancourt J rejected the contention that since the relevant breaches of fiduciary duty had caused no loss to the company, the misconduct of the company’s affairs was not unfairly prejudicial to the interests of the shareholders generally, or to the petitioners in particular. By their very nature, the breaches of duty had caused all of the shareholders prejudice, in that the respondent was wrongly putting himself in a position where his duty to the shareholders of the company conflicted with his own interests, and was then preferring his own interests. ‘That kind of conflict is corrosive of good administration and trust between shareholders and directors. Further, the prejudice was by its nature unfair. The members did not know of [the chief executive officer’s] personal interest: they were unaware of the undisclosed conflict that the CEO of the Company continued to have. They were deprived of the right to give or refuse consent to [him] taking the opportunity for his personal benefit.’
Fancourt J
[2018] EWHC 1715 (Ch)
Bailii
England and Wales
Cited by:
CitedMacom Gmbh v Bozeat and Others ChD 21-Jun-2021
Order regulating company’s affairs
COMPANY – Unfair prejudice – Petitioner 60% shareholder – Respondents 40% shareholders – Alleged breaches of director’s duties and failures to observe Shareholders’ Agreement – Undermining company’s corporate governance – Appropriate remedy – . .

These lists may be incomplete.
Updated: 10 July 2021; Ref: scu.619892

Re ITUA BBA International Ltd: ChD 28 Jun 2012

The court was asked as to the interpretation of the 2007 Regulations where the intended eventual company had been formed only for this purpose.
Held: The phrase existing transferee company’ in the regulation attempted no more than to exclude from the regulations a a transferee company which had been solely incorporaded to stand as a transeferee company,
Henderson J
[2012] EWHC 1783 (Ch), [2013] Bus LR 490, [2012] WLR(D) 187
Bailii, WLRD, WLRD
Companies (Cross-Border Mergers) Regulations 2007 3(1)
England and Wales

Updated: 24 June 2021; Ref: scu.461758

In Re Manlon Trading Ltd: CA 22 Jun 1995

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
Citing:
Appeal fromIn Re Manlon Trading Ltd ChD 15-Aug-1994
A different approach is required on striking out in Company Director Disqualification proceedings. . .

Cited by:
CitedEastaway 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 . .
CitedSecretary of State for Trade and Industry v Eastaway CA 6-Apr-2001
. .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.82043

Smith v Gale: ChD 1974

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
Citing:
CitedFrank 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 . .
CitedDean 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 . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.238764

International Bulk Shipping and Services Ltd v President of India and Another: CA 11 Dec 1995

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
Citing:
AffirmedInternational 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 by:
CitedAdelson 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 . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.82399

George Barker Transport Ltd v Eynon: CA 1974

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 by:
CitedUltraframe (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 . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.230293

Kellar v Williams: PC 7 Feb 2000

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
Bailii, PC
England and Wales
Citing:
See AlsoKenneth 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 . .

Cited by:
See alsoKenneth 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 . .
AppliedOyston 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 . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.174641

VTB Capital Plc v Nutritek International Corp and Others: ChD 29 Nov 2011

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)
Bailii
England and Wales
Cited by:
At First InstanceVTB 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 fromVTB 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 . .
CitedPrest 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 . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.449025

Lowick Rose Llp v Swynson Ltd and Another: SC 11 Apr 2017

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
Citing:
CitedDunlop 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 . .
CitedIn Re Lee’s Patent PC 16-Jun-1856
. .
CitedBradburn 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 fromSwynson 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 . .
CitedBritish 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 . .
CitedParry 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 . .
CitedParry 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 . .
CitedBurston 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: . .
CitedAlbacruz (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 InstanceSwynson 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 . .
CitedChetwynd 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 . .
CitedPaul 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 . .
CitedBoscawen 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 . .
CitedArab 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 . .
CitedBank 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 . .
CitedDarlington 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. . .
CitedLinden 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: . .
CitedLondon 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’ . .
CitedDarlington 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 . .
CitedRevenue 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 . .
CitedBanque 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 . .
CitedEdinburgh 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 . .
CitedLipkin 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 . .
CitedTFL 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 by:
CitedTiuta 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 . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.581644

Laminates Acquisition Co v BTR Australia Ltd: ComC 31 Oct 2003

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)
Bailii
England and Wales
Citing:
MentionedA/S Rendal v Arcos Ltd HL 1937
. .
CitedMannai 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 . .
CitedSenate 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 . .
MentionedOdebrecht Oil and Gas Services Ltd v North Sea Production Co Ltd ChD 10-May-1999
. .

Cited by:
CitedForrest 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 . .

These lists may be incomplete.
Updated: 05 May 2021; Ref: scu.187335

Regina v Secretary of State for Trade and Industry Ex Parte McCormick: CA 10 Feb 1998

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 by:
CitedClingham (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 . .

These lists may be incomplete.
Updated: 01 May 2021; Ref: scu.87954

Highbury Pension Fund Management Company and Another v Zirfin Investments Ltd and Others: ChD 14 Feb 2013

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
Bailii, WLRD
Agricultural Credits Act 1928, Partnership Act 1890 39
England and Wales
Citing:
CitedHighbury Pension Fund Management Company and Another v Zirfin Investments Management Ltd and Others CA 3-Oct-2013
4
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 . .
CitedIn Re Ritson ChD 1898
. .
CitedIn 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] . .

These lists may be incomplete.
Updated: 30 April 2021; Ref: scu.470996

In Re X Ltd: ChD 5 Jun 2001

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
Companies Act 1985 459
England and Wales

Updated: 24 April 2021; Ref: scu.82305

Secretary of State for Trade and Industry v Jabble and Others: CA 22 Jul 1997

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 by:
CitedCabvision 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 . .
CitedRe Kaytech International plc; Secretary of State for Trade and Industry v Kaczer and others CA 1999
re_kayteckChD1999
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 . .

These lists may be incomplete.
Updated: 23 April 2021; Ref: scu.89139

Secretary of State for Trade and Industry v Davies and Others: CA 7 Jun 1996

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 by:
CitedDavies 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 . .

These lists may be incomplete.
Updated: 11 April 2021; Ref: scu.89131