Tag: Company

O’Donnell v Shanahan and others; In re Allied Business and Financial Consultants Ltd: ChD 7 Aug 2008

Judges:

Richard Sheldon QC

Citations:

[2008] EWHC 1973 (Ch), [2009] 1 BCLC 328

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

Appeal from – O’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 19 July 2022; Ref: scu.272885

Re BSB Holdings Ltd; London Merchant Securities Plc v Chargeurs Sa and Others: ChD 2 Aug 1995

Protection of minority shareholders was not to be used to impede the proper management of a company’s affairs. Directors must act in the company’s overall best interests despite prejudice to one class of shareholders.
Arden J said: ‘However, in my judgment, it is not the effect of Re Saul D Harrison and Sons plc that a remedy under section 459 can be given only if the directors have acted in breach of duty or if the company has breached the terms of its articles or some other relevant agreement. These matters constitute in most cases the basis for deciding what conduct is unfair. But the words of the section are wide and general and, save where the circumstances are governed by the judgments in Re Saul D Harrison and Sons plc, the categories of unfair prejudice are not closed. The standards of corporate behaviour recognised through section 459 may in an appropriate case thus not be limited to those imposed by enactment or existing case law.’

Judges:

Arden J

Citations:

Times 02-Aug-1995, Independent 07-Sep-1995

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – In re Saul D Harrison and Sons plc CA 1995
The ‘legitimate expectations’ of a party were a label for the ‘correlative right’ to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power . .

Cited by:

See Also – Re BSB Holdings Ltd (No 2) ChD 1996
Arden J considered a submission that there could be no breach of duty by the directors unless the substantial purpose of their acts was to discriminate improperly against a group of shareholders. In rejecting that submission she commented as . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 19 July 2022; Ref: scu.81761

In Re Migration Services International Ltd: ChD 2 Dec 1999

When considering whether to impose a disqualification order upon a company director, it was relevant to consider the unlawful and unauthorised use of the name of a liquidated company. The sections of the Insolvency Act which might be taken into account were not exhaustively listed.

Citations:

Times 02-Dec-1999, Gazette 08-Dec-1999

Statutes:

Company Directors Disqualification Act 1986, Insolvency Act 1986

Jurisdiction:

England and Wales

Company

Updated: 19 July 2022; Ref: scu.82062

In Re Joseph Holt Plc; Winpar Holdings Ltd v Joseph Holt Group Plc: ChD 15 Nov 2000

An offer was made to purchase the entire share capital of a company, but the documents were not served on shareholders in certain foreign countries because of difficulties in complying with regulatory provisions. Having received acceptance from more than 90 per cent of shareholders, the company sent to all remaining shareholders notices requiring the sale of the their shareholdings. Some objected that the second notices were invalid since they had not had served on them the original notices. Held the notices were upheld. They related to the offer as a whole, not to service of the offer, and that offer could not fail because of a failure to serve notice on a few shareholders.

Citations:

Times 15-Nov-2000, Gazette 16-Nov-2000

Statutes:

Companies Act 1985 428

Jurisdiction:

England and Wales

Cited by:

Appeal from – Winpar Holdings Ltd v Joseph Holt Group plc CA 24-May-2001
An offer was made to purchase the entire share capital of a company, but the offer allowed for different arrangements for service on shareholders in certain foreign countries because of difficulties in complying with local regulatory provisions. The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 19 July 2022; Ref: scu.81966

In Re Living Images Ltd: ChD 7 Aug 1995

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

Citations:

Times 07-Aug-1995, [1996] 1 BCLC 348

Jurisdiction:

England and Wales

Cited by:

Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 19 July 2022; Ref: scu.82006

In Re Dennis Hilton Ltd: ChD 4 Jul 2001

A director of a failed company had been prosecuted for matters relating to the failure. The criminal court had had power to impose a disqualification order but did not do so. The Secretary of State subsequently applied for a civil disqualification, and the respondent argued that, given the view taken by the criminal court, this was an abuse of process. The court held that the exercise of the power was ostensibly proper, and a court should be slow to intervene. The section clearly anticipated an application being made in the light of criminal proceedings, and the failure to make an application whilst the criminal proceedings remained outstanding could not be read as an intention to abandon applying for a disqualification order.

Citations:

Times 04-Jul-2001

Statutes:

Company Directors Disqualification Act 1986 4

Jurisdiction:

England and Wales

Company

Updated: 18 July 2022; Ref: scu.81845

Burnden Holdings (UK) Ltd v Fielding and Another: ChD 5 Sep 2014

The company sought to recover from the defendants, two former directors.
Held: The claim was statute barred.
Hodge QC dealt with the claimant’s reliance on section 32: ‘That leaves the claimant’s reliance upon section 32. There the difficulties that the claimant faces are that there are no facts sufficiently asserted to give rise, in my judgment, to any realistic prospect of relying upon either limb of section 32 of the 1980 Act. Given the knowledge and involvement on the part, in particular of the company’s auditors, I fail to see how it can be asserted either (1) that there was any deliberate commission of a breach of duty on the part of the defendants; or (2) that there had been any deliberate concealment from the claimant company of facts relevant to the claimant’s alleged right of action. I am afraid, from Mr Latimer’s point of view, that I just do not see how the claimant company can begin to get home in relation to either of those matters. In view of the involvement of the accountants and solicitors, there is no realistic prospect of establishing either the deliberate commission of a breach of duty or the deliberate concealment of any fact relevant to the claimant’s right of action.’

Judges:

Hodge QC HHJ

Citations:

[2014] EWHC 3356 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006, Limitation Act 1980 2(1)(b) 32

Jurisdiction:

England and Wales

Cited by:

Appeal from – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Limitation

Updated: 18 July 2022; Ref: scu.538050

Hurndell v Hozier and Another: ChD 19 Mar 2008

Judges:

David Richards J

Citations:

[2008] EWHC 538 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hurndell v Hozier and Another CA 12-Feb-2009
A company sought a public listing, but too many shares were held in private hands. Shares were to be transferred by the claimant, but he now denied having signed any transfer. He now appealed against rejection of his claim saying that the judge had . .
See Also – Hurndell v Hurndell and Others ChD 17-Dec-2010
. .
See Also – Hurndell v Hozier and Others ChD 18-Feb-2011
. .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 18 July 2022; Ref: scu.270952

In Re Continental Assurance Co of London Plc: ChD 2 Jul 1996

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

Citations:

Gazette 24-Jul-1996, Times 02-Jul-1996, [1997] 1 BCLC 48

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Cited by:

Cited – The 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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 July 2022; Ref: scu.81815

In Re Eurofinance Group Ltd: ChD 6 Jul 2000

Where a quasi-partnership had been created with the expectation that a party would be involved in the management of the business, it was a breach of his right to exclude him. This was a consequence of the restraint imposed by equity on relations between majority and minority partners, and not the cause of it. Because the continuing partners would continue the business, the share of the partner ordered to be purchased, should be valued as a going concern.

Citations:

Times 04-Jul-2000, Gazette 06-Jul-2000

Jurisdiction:

England and Wales

Equity, Company

Updated: 18 July 2022; Ref: scu.81869

In Re Britannia Homes Centres Ltd and the Company Directors Disqualification Act 1986; Official Receiver v McCahill: ChD 27 Jun 2000

An appeal against an order disqualifying the director of a company in an application for leave to act as a director should be made to the High Court. Where the application was so as to allow the director to act on a company in the course of winding up proceedings, the court to which the application should be made was that hearing the winding up proceedings.

Citations:

Times 27-Jun-2000, Gazette 29-Jun-2000

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Company

Updated: 18 July 2022; Ref: scu.81757

El Ajou v Dollar Land Holdings Ltd: CA 2 Dec 1993

The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: The company was fixed with the knowledge of its part-time chairman and a non-executive director, because he had acted as its directing mind and will for the particular purpose of arranging its receipt of the tainted funds. It was sufficient that the director had management and control so far as the receipt of the fraud was concerned, having made arrangements for the receipt and disposal of the money, even though he had no general managerial responsibility in the company.
Hoffmann LJ set out the ingredients of knowing receipt: ‘For this purpose the plaintiff must show, first a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets are traceable to a breach of fiduciary duty.’
When asking who was the controlling mind of a company, the relevant test is to find the person who had management and control in relation to the act or omission in point. The formal position or status as a director is relevant but not decisive. A ‘pragmatic’ approach is necessary: ‘Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company’s articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own’ and ‘ . . different persons may for different purposes satisfy the requirements of being the company’s directing mind and will. ‘ The court considered the ingredients of the tort of ‘knowing receipt’: ‘For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.’ (Hoffmann LJ)
Nourse LJ said: ‘The doctrine attributes to the company the mind and will of the natural person or persons who manage and control its actions. At that point, in the words of Millett J ([1993] 3 ALL ER 717 at 740): ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’ It is important to emphasise that management and control is not something to be considered generally or in the round. It is necessary to identify the natural person or persons having management and control in relation to the act or omission in point. This was well put by Eveleigh J in . . R v Andrews Weatherfoil Ltd . .
Decided cases show that, in regard to the requisite status and authority, the formal position, as regulated by the company’s articles of association, service contracts and so forth, though highly relevant, may not be decisive. Here Millett J adopted a pragmatic approach. In my view he was right to do so, although it has led me, with diffidence, to a conclusion different from his own.’

Judges:

Nourse, Rose, Hoffmann LJJ

Citations:

Times 03-Jan-1994, [1994] 2 All ER 685, [1993] EWCA Civ 4, [1994] BCC 143, [1994] 1 BCLC 464

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – El Ajou v Dollar Land Holdings Plc and Another ChD 3-Jan-1993
A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no . .
Cited – Lennard’s Carrying Company Limited v Asiatic Petroleum Company Limited HL 1915
The House was asked as to when the acts of an individual became those of his employer under section 502 (‘any loss or damage happening without (the ship owner’s) actual fault or privity’).
Held: Viscount Haldane LC said: ‘It must be upon the . .
Cited – Regina v Andrews-Weatherfoil Ltd CACD 1972
For so long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Eveleigh J: ‘It is necessary . .

Cited by:

Applied – Bank 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 . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – Fassihim, 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 . .
See Also – El Ajou v Dollar Land Holdings Plc ChD 1995
The tracing of assets into the hands of a third party depends upon a notional charge. There are no inflexible rules. The essential elements of ‘knowing receipt’ are: ‘For this purpose the plaintiff must show, first, a disposal of his assets in . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – KR and others v Royal and Sun Alliance Plc CA 3-Nov-2006
The insurer appealed findings of liability under the 1930 Act. Claims had been made for damages for child abuse in a residential home, whom they insured. The home had become insolvent, and the claimants had pursued the insurer.
Held: The . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Cited – Jetivia 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 . .
Cited – Akers and Others v Samba Financial Group SC 1-Feb-2017
Saad Investments was a Cayman Islands company in liquidation. The liquidator brought an action here, but the defendant sought a stay saying that another forum was clearly more appropriate. Shares in Saudi banks were said to be held in trust for the . .
Lists of cited by and citing cases may be incomplete.

Company, Equity, Torts – Other, Trusts

Updated: 17 July 2022; Ref: scu.262615

El Ajou v Dollar Land Holdings Plc and Another: ChD 3 Jan 1993

A non active director may still be company’s ‘directing mind’. The doctrine of attributing the actions of individuals to a company is that ‘Their minds are its mind; their intention its intention; their knowledge its knowledge.’
Tracing was no longer available at common law because funds received had become mixed with others, but the remedy remained available in equity.

Judges:

Millett J

Citations:

Times 03-Jan-1993, [1993] 3 All ER 717

Jurisdiction:

England and Wales

Cited by:

Cited – Shalson v Russo ChD 11-Jul-2003
The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase.
Held: The transaction was . .
Appeal from – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Jetivia 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 . .
See Also – El Ajou v Dollar Land Holdings Plc ChD 1995
The tracing of assets into the hands of a third party depends upon a notional charge. There are no inflexible rules. The essential elements of ‘knowing receipt’ are: ‘For this purpose the plaintiff must show, first, a disposal of his assets in . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 17 July 2022; Ref: scu.80281

Allmark v Ervel Curt Burnham, Distinct Services Ltd: ChD 30 Nov 2005

The petitioner sought for relief from alleged prejudicial conduct by the respondents in the management of the company.

Judges:

John Randall QC

Citations:

[2005] EWHC 2717 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Re Nuneaton Borough AFC Ltd (No 2) 1991
. .
Cited – Profinance Trust SA v Gladstone CA 2-Jul-2001
When a court ordered the purchase of the shares of a minority shareholder by the majority holder, the shares should normally be valued as at the date of that order. This might cause unfairness in some cases, for example where the company had been . .
Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Cited – Re Ghyll Beck Driving Range Ltd 1993
. .
Cited – Atlasview Ltd v Brightview Ltd 2004
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 13 July 2022; Ref: scu.235506

Franbar Holdings Ltd v Patel and others: ChD 2 Jul 2008

Action alleging breach of shareholders’ agreement.
Held: Directors may have genuine and proper differences of opinion as to the correctness of making a section 172 claim.

Judges:

William Trower QC

Citations:

[2008] EWHC 1534 (Ch), [2009] 1 BCLC 1, [2009] Bus LR D14, [2008] BCC 885

Links:

Bailii

Statutes:

Companies Act 2006 172

Jurisdiction:

England and Wales

Cited by:

Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 12 July 2022; Ref: scu.276672

In Re Rex Williams Leisure Plc (In Administration): CA 4 May 1994

On an application for a disqualification order, the director against whom the order is to be made should file an affidavit before the date of the hearing. A disqualification order can have grave consequences and is a serious interference with the freedom of the individual. As to procedure: ‘The Secretary of State or the official receiver will not usually have first-hand knowledge of the matters on which the disqualification application is founded but, and this is important, a defendant to a disqualification application inevitably will have such knowledge. Many disqualification applications are not defended. When they are, the facts which are seriously in issue may be very limited. It would be absurd, because it would be pointless, for the affidavit evidence in chief always to consist exclusively of matters within the personal knowledge of the deponent.’ and ‘Frequently disqualification applications are based on a defendant’s conduct as a director over many months or even years. There is a measure of practical good sense in a procedure whereby the plaintiff has first to set out his case, with sufficient clarity and identification of the evidence being relied on for the defendant to know where he stands. Then the defendant puts in his evidence. The plaintiff can see what factual issues there are, and he can then take steps and incur expense in adducing where necessary first-hand evidence on these issues, before the hearing. In this way the genuine issues can be resolved properly and fairly in the interests of the defendant and in the public interest. This procedure does not prejudice a fair and just trial of the issues.’

Judges:

Sir Donald Nicholls V-C

Citations:

Times 04-May-1994, Ind Summary 09-May-1994, [1994] Ch 1

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal from – Re Rex Williams Leisure Plc (In Administration) ChD 1-Sep-1993
Directors facing disqualification proceedings to give evidence by affidavit. . .

Cited by:

Appealed to – Re Rex Williams Leisure Plc (In Administration) ChD 1-Sep-1993
Directors facing disqualification proceedings to give evidence by affidavit. . .
Cited – The 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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 11 July 2022; Ref: scu.82148

Chantrey Vellacott v The Convergence Group Plc and others: ChD 31 Jul 2007

The claimants, a firm of accountants, sued their former clients for unpaid fees. The defendant company counterclaimed for professional negligence. The claimant had expended andpound;5.6m in costs. The claimants now sought a non-party costs order against former directors of the company, which had gone into administration. They said that the company’s counterclaim was built on lies told by the directors.
Held: ‘this is a clear case for indemnity costs. I found Mr Robinson to be an evasive and untruthful witness who has sought throughout these proceedings to support a case that was advanced on a false basis.’ The director personally controlled the company and made the decisions, and his behaviour took him outside the protection of limited liability.

Judges:

Rimer J

Citations:

[2007] EWHC 1774 (Ch)

Links:

Bailii

Statutes:

Supreme Court Act 1981 51, Civil Procedure Rules 48.2

Jurisdiction:

England and Wales

Citing:

Cited – Ghafoor and others v Cliff and others ChD 11-Apr-2006
The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s . .
Cited – Globe Equities Ltd v Globe Legal Services Ltd and others and Other Actions CA 5-Mar-1999
A court which was considering ordering a third party, who was not party to the action, to pay costs in an action, should first be satisfied that it is just to do so in all the circumstances. There is no need to establish any exceptional . .
Cited – Three Rivers District Council and others v The Governor and Company of the Bank of England ComC 12-Apr-2006
The claimants had pursued compensation over many years from the defendants alleging various kinds of misfeasance in regulating the bank BCCI. The action had collapsed.
Held: ‘this was extraordinary litigation which came to an abrupt albeit . .
Cited – Goodwood Recoveries Ltd v Breen CA 19-Apr-2005
A claim against the defendant for money owed to someone else had been bought by the claimant of which Slater, a solicitor, was a director and shareholder. The claim was pursued in the name of the claimant by Slater as its solicitor and principal . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
A section 51 non-party costs application should not be used as a substitute for the pursuit of a related cause of action against the non-party in ordinary proceedings. Nine rules were set out for allowing a costs order against someone who is not a . .
Cited – Dymocks Franchise Systems (NSW) Pty Limited v Todd and Todd, Bilgola Enterprises Ltd and Lambton Quay Books Ltd PC 7-Oct-2002
PC (New Zealand) The claimants asserted that the respondents had wrongly terminated their franchise licence. The agreement was subject to the New South Wales law requiring good faith, but the court had not had . .
Cited – Eagleson v Liddell CA 2-Feb-2001
The court may make costs orders in respect of any recourse the parties may have to an alternative dispute resolution procedure. The costs order included the costs of a mediation. . .
Lists of cited by and citing cases may be incomplete.

Costs, Company

Updated: 11 July 2022; Ref: scu.258489

Ntionik Anonymi Etaireia Emporias I/Y, Logismikou kai Parochis Ypiresion Michanografisis, Ioannis Michail Pikoulas v Epitropi Kefalaiagoras: ECJ 8 Mar 2007

(Freedom To Provide Services) Securities Listing particulars Inclusion of inaccurate information Member State’s competence to impose sanctions.

Citations:

C-430/05, [2007] EUECJ C-430/05

Links:

Bailii

Jurisdiction:

European

Company

Updated: 10 July 2022; Ref: scu.251128

Clark v Watson: 1982

Two dentists practised in partnership. The co-partner said that on the death of one, to his estate should be paid ‘the Capital standing to the credit of the deceased Partner in the Accounts of the Partnership’. The court was asked whether that provision would require accounts to be taken as at the date of death.
Held: The practice would have to draw up accounts to the date of death, but: ‘If this conclusion is incorrect and, contrary to my opinion, the phrase ‘the Accounts of the Partnership’ in cl. Fourteenth falls to be construed as meaning inter alia a balance sheet as at 31 March 1977, it nevertheless follows from my opinion that there is nothing in this contract of copartnery to take it outwith the scope of the general rule that the pursuer qua executrix of the deceased is entitled to have the assets entered at their fair value in a fresh balance sheet as at 31 March 1977. This is certainly so if the deceased is not proved to have approved these existing accounts prepared as at 31 March 1977. Although I have heard no debate on what would be the effect of his approval of the accounts, I venture to think that his approval would not bind the pursuer to accept payment in accordance with these accounts. They were prepared upon the assumption that the partnership would continue. The deceased may have agreed to the assets being inserted at a book value in accounts prepared upon that assumption, but I do not, as at present advised, see how the deceased’s approval of accounts for that purpose can bind the pursuer to accept that valuation of the assets for the purpose of obtaining payment of the deceased’s share of capital on dissolution of the partnership by his death.’

Judges:

Lord Dunpark

Citations:

1982 SLT 450

Jurisdiction:

Scotland

Cited by:

Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 July 2022; Ref: scu.238867

Hunter v Dowling: CA 1893

The articles of partnership between the parties required an annual account. A retiring or deceased partner was to be paid out ‘at the amount standing to his credit in the last balance sheet which shall have been signed previously to the date of such retirement or death.’ On the death of a partner on 10 April 1891, no account had been taken for the year ending 31 March 1891. The question was whether his share should be ascertained by reference to the previous year’s account (which had been taken and signed) or whether the correct course was to direct that an account be taken for the year to 31 March 1891 and ascertain the share by reference to that account. A literal construction of the words ‘shall have been signed’ would have led to the conclusion that the relevant account was that for the year ending 31 March 1890.
Held: The Court rejected that construction. It ought to act on the basis that that which ought to be done must be treated as if it had been done. From 31 March 1891 each partner had an accrued right under clause 15 to have an account taken as at that date; and the personal representatives of a partner who died after that day had a right to be paid out as if that had been done.

Citations:

[1893] 3 Ch 212

Jurisdiction:

England and Wales

Citing:

Followed – Pettyt v Janeson 1819
. .

Cited by:

Cited – In Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 July 2022; Ref: scu.238860

Zahid 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 paid by the firm a specified sum, irrespective of profits, for work to be done by him on its behalf?
Held: There is no minimum threshold that has to be reached in relation to a person’s rights to (a) profits or (b) involvement in management before he can be regarded as a partner. The question is simply whether, by their actions, the parties intended to create a partnership. A partner need not be remunerated by reference to profit and it is no bar to being a partner that he does not make any capital contribution, although that may be a factor pointing against finding that a partnership has been created.
Hughes LJ said: ‘the partners are free under the [1890] Act to arrange for the remuneration of themselves in any manner they choose, including by agreement that one or more shall receive specific sums, or that one or more receive nothing, in either case irrespective of profits’.
Wilson LJ cited a passage from a book in which there was reference to a partner who ‘receives all or most of his remuneration in the form of a salary rather than a simple share of profits’.

Judges:

Tuckey, Wilson, Hughes LJJ

Citations:

[2006] EWCA Civ 613, [2006] 1 WLR 2562

Links:

Bailii

Statutes:

Partnership Act 1890

Jurisdiction:

England and Wales

Cited by:

Cited – Tiffin v Lester Aldridge Llp EAT 16-Nov-2010
EAT CONTRACT OF EMPLOYMENT – Whether established
The Claimant, who is a solicitor, became a salaried partner in a partnership, which became a Limited Liability Partnership, which was the Respondent. The . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Cited – 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 July 2022; Ref: scu.241722

Shepherds Investments Ltd and Another v Walters and others: ChD 12 Apr 2006

The claimant company accused former directors and employee of setting up a competing business, of diverting business opportunities and of misusing confidential information. They said that they had acted in breach not only of their fiduciary obligations but their implied obligation of fidelity the moment that they procured the services of attorneys in the Cayman Islands to set up the rival business.
Held: On the facts, a former employee was also in breach of obligations as a fiduciary, whether or not he was to be regarded as a director, and that he was in breach of his duty of fidelity.
Etherton J said: ‘What the cases show, and the parties before me agree, is that the precise point at which preparations for the establishment of a competing business by a director become unlawful will turn on the actual facts of any particular case. In each case, the touchstone for what, on the one hand, is permissible, and what, on the other hand, is impermissible unless consent is obtained from the company or employer after full disclosure, is what, in the case of a director, will be in breach of the fiduciary duties to which I have referred or, in the case of an employee, will be in breach of the obligation of fidelity. It is obvious, for example, that merely making a decision to set up a competing business at some point in the future and discussing such an idea with friends and family would not of themselves be in conflict with the best interests of the company and the employer. The consulting of lawyers and other professionals may, depending on all the circumstances, equally be consistent with a director’s fiduciary duties and the employee’s obligation of loyalty. At the other end of the spectrum, it is plain that soliciting customers of the company and the employer or the actual carrying on of trade by a competing business would be in breach of the duties of the director and the obligations of the employee. It is the wide range of activity and decision making between the two ends of the spectrum which will be fact sensitive in every case.’

Judges:

Etherton J

Citations:

[2006] EWHC 836 (Ch), [2007] 2 BCLC 202, [2007] FSR 15, [2007] IRLR 110

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Helmet 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Financial Services, Company

Updated: 05 July 2022; Ref: scu.240440

Tea-Cegos and Stg v Commission (Law Relating To Undertakings) T-383/05: ECFI 14 Feb 2006

ECJ Public contracts – Community tendering procedure – Recruitment of technical assistance for short-term expertise for exclusive benefit of third countries benefiting from external aid – Rejection of tenders

Citations:

T-383/05, [2006] EUECJ T-383/05, [2006] EUECJ T-383/05

Links:

Bailii, Bailii

European, Company

Updated: 05 July 2022; Ref: scu.238518

C Evans and Sons Ltd v Spritebrand Ltd and another: CA 1985

The court considered when a company director might be personally liable for acts of the company: ‘in order to make a director, other officer or employee of a company personally liable for the company’s tort, it is necessary to show either that he was himself the person who committed, or participated in, the act constituting the tort, or that he directed or procured the tortious act to be done by others; and that inquiries into the matter will or may involve an ‘elusive question’ turning on the particular facts of the case, and whose resolution may in turn involve the making of a policy decision as to the side of the line on which the case ought to fall.’ and ‘is it the law of England that a director of a company who has authorised, directed and procured the commission by the company of a tort of the nature specified in section 1(2) of the Copyright Act 1956 can in no circumstances be personally liable to the injured party unless he directed or procured the acts of infringement in the knowledge that they were tortious, or recklessly, not caring whether they were tortious or not?’ (Lord Justice Slade)

and ‘If the directors themselves directed or procured the commission of the act they would be liable in whatever sense they did so, whether expressly or impliedly.’ but ‘Nevertheless, judicial dicta of high authority are to be found in English decisions which suggest that a director is liable for those tortious acts of his company which he has ordered or procured to be done.’ (Lord Justice Atkin)

Judges:

Lord Justice Slade, Lord Justice Atkin

Citations:

[1985] 1 WLR 316

Statutes:

Copyright Act 1956 1(2)

Jurisdiction:

England and Wales

Cited by:

Cited – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .
Cited – MCA 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 . .
Cited – Global Projects Management Ltd v Citigroup Inc and Others ChD 17-Oct-2005
GPM had acquired an internet domain name ‘citigroup.co.uk’. Citigroup alleged passing off and trade mark infringement. The claimant complained of an unjustified threat. The defendant counterclaimed, and sought summary judgment.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 05 July 2022; Ref: scu.221583

Senior Engineering Investments BV v Staatssecretaris van Financien: ECJ 12 Jan 2006

ECJ Directive 69/335 – Indirect taxes on the raising of capital – National rules taxing a (subsidiary) company by way of capital duty in respect of a contribution made by its parent company (the grandparent company) in favour of its subsidiary (a sub-subsidiary company) – Capital duty – Increase of capital – Payment ‘to the share premium account’ – Increase in the assets of the company – Increase in the value of shares – Provision of services by a member – Payment made by a member of a member – Payment to a subsidiary – ‘Real recipient’ – Levying of capital duty once only (in the Community) – Article 52 of the EC Treaty (now, after amendment, Article 43 EC) – Freedom of establishment – National practice exempting a (subsidiary) capital company from taxation only if its subsidiary (sub-subsidiary company) is also established in that Member State)

Citations:

[2007] STC 93, [2006] ECR I-525, [2006] EUECJ C-494/03, [2006] STI 201

Links:

Bailii

Jurisdiction:

European

Taxes – Other, Company

Updated: 04 July 2022; Ref: scu.237651

Commission v Greece C-96/05: ECJ 15 Dec 2005

ECJ (Law Relating To Undertakings) Failure of the State – Directive 2001/65 / EC – Annual accounts and consolidated accounts of certain types of companies – Failure to transpose within the prescribed period

Citations:

ECLI: EU: C: 2005: 793, [2005] EUECJ C-96/05

Links:

Bailii

Jurisdiction:

European

Company

Updated: 04 July 2022; Ref: scu.236399

Wilkinson v West Coast Capital and others: ChD 22 Jul 2005

A claim was to be made about actions of unfair prejudice by the directors against the minor shareholder. The court considered a preliminary issue as to the admissibility of evidence, including without prejudice correspondence.
Held: The applicant sought to dissect the negotiations to identify what was admissible. That was not acceptable as regards without prejudice correspondence: ‘part of the purpose is to enable parties to conduct themselves freely in negotiations, it is important that things going beyond technical admissions should be caught by the bars imposed by the without prejudice principles. In my view, that will extend to who it was who broke off negotiations and who decided not to go through with an apparently agreed deal (albeit subject to contract). That seems to me to be all part of the freedom of negotiation under the umbrella. ‘

Judges:

Mann J

Citations:

[2005] EWHC 1606 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Citing:

Cited – Vernon v Bosley (1) QBD 1993
The court discussed the extent to which a judge had control over the admission of otherwise admissible evidence: ‘A point comes at which literal admissibility has to yield to the constraints of proportionality . . such proportionality may in any one . .
Cited – Vernon v Bosley (1) CA 8-Apr-1994
Though the judge had a right to exclude admissible evidence, it remained a balancing exercise which came down to being a matter of his discretion. Evidence might not be admitted which would involve ‘inconvenience, expense, delay or oppression’. The . .
Cited – Re Unisoft Group Limited (No 3) ChD 1994
When considering applications to strike out parts of pleadings in a s459 application, the courts had to recognise the need to be careful not to allow the parties to trawl through irrelevant grievances. B The statutory definition of ‘shadow director’ . .
Cited – Prudential Assurance Co Ltd v Prudential Insurance Co of America ChD 20-Dec-2002
The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of . .
Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .

Cited by:

See Also – Wilkinson v West Coast Capital and others ChD 21-Dec-2005
. .
Lists of cited by and citing cases may be incomplete.

Company, Evidence

Updated: 01 July 2022; Ref: scu.228968

Keppell v Bailey: ChD 29 Jan 1834

The court was asked whether the owner of land can burthen it in the hands of future owners by the creation of novel rights.
Held: Lord Brougham said: ‘It must not be supposed that incidents of a novel kind can be devised and attached to property at the fancy and caprice of any owner. It is clearly inconvenient both to the science of the law and the public weal that such a latitude should be given. There can be no harm in allowing the fullest latitude to men in binding themselves . . to answer in damages for breach of their obligations . . but great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property.’
As to the subject of covenants, he said: ‘The covenant (that is, such as will run with the land) must be of such a nature as ‘to inhere in the land,’ to use the language of some cases; or ‘it must concern the demised premises, and the mode of occupying them,’ as it is laid down in others: ‘it must be quodammodo annexed and appurtenant to them,’ as one authority has it; or, as another says, ‘it must both concern the thing demised, and tend to support it, and support the reversioner’s estate.’ Now, the privilege or right in question does not inhere in the land, does not concern the premises conveyed or the mode of occupying them: it is not appurtenant to them. A covenant, therefore, that such a right should be enjoyed, would not run with the land. Upon the same principle, it appears to us that such a right, unconnected with the enjoyment or occupation of the land, cannot be annexed as an incident to it: nor can a way appendant to a house or land be granted away, or made in gross; for, no one can have such a way but he who has the land to which it is appendant: Bro. Abr. Graunt, pl. 130 (citing, M. 5 H. 7, fo. 7, pl. 15). If a way be granted in gross, it is personal only, and cannot be assigned. So, common in gross sans nombre may he granted, but cannot be granted over: per Treby, C. J., in Weekly v. Wildman, 1 Lord Raym. 407. It is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it: nor can the owner of land render it subject to a new species of burthen, so as to bind it in the hands of an assignee.’

Judges:

Lord Brougham LC

Citations:

[1834] EWHC Ch J77, (1834) 2 My and K 517, [1834] 39 ER 1042, [1834] EngR 193, (1834) Coop T Br 298, (1834) 47 ER 106, [1834] EngR 448, (1834) 39 ER 1042

Links:

Bailii, Commonlii, Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Lists of cited by and citing cases may be incomplete.

Contract, Company

Updated: 30 June 2022; Ref: scu.245419

Smith v Charles Building Services Ltd and Another: ChD 22 Apr 2005

The claimant said that his name had been removed from the company register unlawfully.

Judges:

Mr Justice Mann

Citations:

[2005] EWHC 654 (Ch), [2005] BCC 513

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Shtun v Zaljejska CA 18-Apr-1996
Evidence of prejudice from inexcusable delay is to be examined carefully. It is not essential for a finding of prejudice in such a case that there should be evidence of the particular respects in which potential witnesses’ recollections have been . .

Cited by:

Appeal from – Smith v Charles Building Services Ltd and Another CA 19-Jan-2006
An application was made for the rectfication of the company’s registers.
Held: The claimant’s name had been improperly removed from the register, and therefore he was prima facie entitled to a rectification. However even if rectified, the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 29 June 2022; Ref: scu.224335

Commission v Spain C-84/03: ECJ 13 Jan 2005

ECJ Law Relating To Undertakings – Failure to fulfil obligations – Directives 93/36/EEC and 93/37/EEC – Public contracts – Award procedure for public supply and public works contracts – Scope – Definition of contracting authority – Inter-administrative cooperation agreements – Definition of contract – Use of the negotiated procedure in cases not provided for by the directive

Judges:

CWATimmermans, P

Citations:

[2005] ECR I-139, [2005] EUECJ C-84/03

Links:

Bailii

Statutes:

Directive 93/37/EEC, Directive 93/36/EEC

Jurisdiction:

European

Cited by:

Cited – Edenred (UK Group) Ltd and Another v HM Treasury and Others SC 1-Jul-2015
Challenge to the decision by HM Treasury to use National Savings and Investments to deliver the Government policy of Tax-free Childcare. The claimants said that the 2006 Regulations imposed an obligation to put such contracts out to tender.
Lists of cited by and citing cases may be incomplete.

Company, Administrative

Updated: 28 June 2022; Ref: scu.221473

Dyment v Boyden and others: CA 26 Nov 2004

Mrs D had gone into business with the respondents to operate a residential care home. It was to be run from premises owned by the respondents. The respondents inter alia had failed to disclose previous convictions, the registration was cancelled, and the company was insolvent. Heads of agreement with an attached draft lease had been agreed but a lease was not signed by the Mrs D. As the business collapsed, Mrs D began another business taking the home’s residents. The respondents claimed arrears of rent from Mrs D.
Held:
Held: It is in principle wrong that an intended party to a lease should be treated as bound at a time before he has committed himself to the lease merely because the other party has delivered the lease in escrow and the escrow conditions are subsequently satisfied. The appeal by the respondents failed.

Judges:

Lord Justice Peter Gibson Lord Justice Clarke and Lord Justice Keene

Citations:

[2004] EWCA Civ 1586, Times 02-Dec-2004

Links:

Bailii

Statutes:

Companies Act 1985 151, Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Distinguished – Alan Estates Ltd v WG Stores Ltd and Another CA 1-Jul-1981
The proposed tenant wanted to get into possession, and was given a key and paid a quarter’s rent to the lessor’s solicitors to be held as stakeholders, before the lease had been formally granted. An undated lease and counterpart were executed and . .
Lists of cited by and citing cases may be incomplete.

Company, Landlord and Tenant

Updated: 27 June 2022; Ref: scu.219716

Speed Investments Limited, Slec Holdings LImited v Formula One Holdings Limited, Bambino Holdings Limited, Luc Argand, Emmanuele Argand-Rey: CA 12 Nov 2004

The applicants, shareholders in the company, sought to stay an action in England, saying the action had first been commenced in Switzerland.
Held: The issue was one of the internal management of the company. Though it did not relate to a matter of the constitution of the company it did relate to a shareholders agreement which concerned one of the main organs of the company. The company was registered in the UK, and the action should be heard here. The stay was refused.

Judges:

The Hon Mr Justice Neuberger Lord Justice Aldous Lord Justice Carnwath

Citations:

[2004] EWCA Civ 1512, Times 18-Nov-2004

Links:

Bailii

Statutes:

Lugano Convention 21

Jurisdiction:

England and Wales

Citing:

Appeal from – Speed Investments Ltd and Another v Formula One Holdings Limited and Others (No 2) ChD 20-Jul-2004
The defendants sought a stay of the action, arguing that proceedings had begun first in Switzerland.
Held: An English court became seised of an action for the purposes of the Convention at the time when the proceedings were served. Under the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 27 June 2022; Ref: scu.219648

Glencore International Ag v Metro Trading International Inc and others: CA 31 Jul 2002

Claimant’s application for security for costs of defendant’s cross cross appeal.

Judges:

Tuckey LJ

Citations:

[2002] EWCA Civ 1252

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Glencore International AG v Metro Trading International Inc and others ComC 1-Aug-2001
Under English conflicts of laws rules the transfer of title to movable property is governed by the law of the place where the property is situated.
Moore-Bick J commented obiter on a dictum of Millett J in Macmillan: ‘However, if the lex situs . .
Lists of cited by and citing cases may be incomplete.

Company, Costs

Updated: 23 June 2022; Ref: scu.217404

Sybron Corporation v Rochem: CA 1983

There was an allegation that the employee had failed to disclose breaches of contract by fellow employees. This had taken place at a time when a decision was being taken as to the payment to be made to him under the terms of a pension scheme. The scheme provided for different payments according to whether or not the member of the scheme was dismissed for fraud or serious misconduct.
Held: An employee has no duty to disclose to his employers his own misconduct but he had been under a duty to disclose a fraudulent misconduct of the subordinate employees with whom he had acted, even though that disclosure would have revealed his own misconduct to his employers. There is no general duty to report a fellow servant’s misconduct or breach of contract but whether there is such a duty depends on the contract or the terms of employment of the particular servant. It is therefore a question of the status of the relevant employee.

Citations:

[1983] 2 All ER 706, [1984] Ch 112

Jurisdiction:

England and Wales

Cited by:

Cited – Horcal 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 . .
Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Fassihim, 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.

Company, Employment

Updated: 23 June 2022; Ref: scu.194877

In Re Wimbledon and Merton Democratic Club Society Ltd: ChD 7 Jan 1999

A Friendly Society having ceased to operate and discussed dissolution with the Registrar and satisfied him that it had ceased to exist could not then claim to have been merely dormant. Re-constitution was properly refused. A revived society was a new one.

Citations:

Times 07-Jan-1999

Statutes:

Industrial and Provident Societies Act 1965 16(1)(a

Jurisdiction:

England and Wales

Company

Updated: 17 June 2022; Ref: scu.82299

In Re Structural Concrete Ltd, Barnes and Others: ChD 29 Jun 2000

In order to try to trade out of difficulties, company directors decided to give priority to the payment of trade and banking debts over debts due to the revenue.
Held: An appeal against the refusal to disqualify the Directors succeeded. There was no dispute as to the facts alleged and so the appeal court was in as good a position as the first instance court to make the assessment. It would allow a wrong message to go out that such an approach would not be strongly disapproved. Where directors had deliberately given priority to certain trade creditors by a policy of non-payment of other creditors of a certain class, was inevitably to lead to a disqualification. The company had withheld substantial sums which had been retained from payments to sub-contractors and which should have been paid to the Inland Revenue. They had used the money in the hope of trading out of their difficulties.

Judges:

Blackburne J

Citations:

Gazette 29-Jun-2000, Times 05-Jul-2000, [2001] BCC 579

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Cited by:

Cited – Cathie 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. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 June 2022; Ref: scu.82205

In Re Westminster Property Management Ltd: ChD 19 Jan 2000

Since company director disqualification proceedings were not criminal proceedings, even though they involved the imposition of a penalty, they remained civil proceedings in nature. The European Convention on Human Rights did not apply to protect a director against having material, disclosed by him under compulsion in the course of an insolvency, being used against him in disqualification proceedings.

Citations:

Times 19-Jan-2000, Gazette 03-Feb-2000

Statutes:

European Convention on Human Rights, Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Litigation Practice, Human Rights, Company

Updated: 17 June 2022; Ref: scu.82287

Reynard v Secretary of State for Trade and Industry: CA 20 Nov 2001

Applications for leave to appeal by both the Secretary of State and the direcyor against the period of disqualification (5.5 years) imposed. Question of whether a former director’s mendacity in court could affect the period of disqualification.

Citations:

[2001] EWCA Civ 1765

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Company

Updated: 13 June 2022; Ref: scu.201519

Bell Davies Trading Ltd and Another v Secretary of State for Trade and Industry: CA 30 Jul 2004

The directors of the company had organised a scheme for imports from China which was thought to be an unlawful abuse of the import licensing scheme. When presneted with an application by the Secretary of State for the winding up of the company, the company gave undertakings as to their future conduct. They then sought a declaration that certain operations would not be in breach of those undertakings, and appealed a refusal of a declaration, and of the undertakings, saying they had been given under effective compulsion.
Held: Generally a party giving an undertaking would not later be heard to speak against it, but in this case it was effectively an appeal against the judge’s decision not to wind the company up only if undertakings were given. This was a case in which the company could be allowed to appeal against its own undertakings. An application for declaratory relief by the company rather than winding up at the request of the Seceretary might have been a better approach in the first place. Had the company sought to establish the lawfulness or otherwise of their scheme they might not have ended up in this postion. The judge’s decision was correct.

Judges:

Lord Justice Mummery The Honourable Mr Justice Collins Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 1066, Times 21-Sep-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – The Secretary of State for Trade and Industry v Bell Davies Trading Ltd and KTA Limited ChD 16-Jan-2004
. .
Cited – In the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986 ChD 19-Mar-2004
The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but . .
Lists of cited by and citing cases may be incomplete.

Commercial, Company

Updated: 11 June 2022; Ref: scu.199593

Concord Trust v The Law Debenture Trust Corporation Plc: CA 28 Jul 2004

Judges:

Lord Justice Peter Gibson Laddie, The Hon Mr Justice Laddie Lord Justice Jonathan Parker

Citations:

[2004] EWCA Civ 1001

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Concord Trust v Law Debenture Trust Corporation Plc HL 28-Apr-2005
The House was called on to construe the terms of a Eurobond. The question was as to the entitlement to require the trustees to issue a notice of default which would accelerate payment under the bond, and the ability of the Trustees to call for an . .
Lists of cited by and citing cases may be incomplete.

Company, Financial Services

Updated: 11 June 2022; Ref: scu.199561

Simm and Others v Anglo-American Telegraph Co: CA 1879

A firm which had acted through nominees sought to raise an estoppel as to its status on the company registers.
Held: The nominees acquired a ‘title by estoppel’ against the company following the issue by the company of a share certificate to the nominees. But that ‘title’ had been lost by the time the action began and was not available to Burge and Co. No representation was made which they had acted upon. Even if there had been a representation, that firm had not altered their position in any material way.

Judges:

Brett LJ, Cotton LJ

Citations:

(1879) 5 QBD 188

Jurisdiction:

England and Wales

Cited by:

Distinguished – Dixon v Kennaway and Co 1900
Farwell J said: ‘There is no doubt on the authorities that a certificate under the seal of the company estops the company from denying the title of a person who has accepted and acted on the certificate. In Knights -v- Wiffen [LR 5 QB 660 at 665] . .
Cited – Cadbury 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. . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Company

Updated: 11 June 2022; Ref: scu.242177

In re Ottos Kopje Diamond Mines Ltd: CA 1893

Bowen LJ: (referring to Bahia) ‘The way in which the Court made the company liable was this: they said that in as much as the certificate had been intended to be acted upon, it became a document the truth of which the company could not deny as against the transferee to whom it was intended to be shewn; and, therefore, it precluded the company, as against the transferee, from denying the truth of what the certificate contained; they could not be in any better position than if the statement were true;’

Judges:

Bowen LJ

Citations:

[1893] Ch 618

Jurisdiction:

England and Wales

Cited by:

Mentioned – Cadbury 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. . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Company

Updated: 11 June 2022; Ref: scu.242174

USP Strategies Plc and Another v London General Holdings Ltd and others: ChD 1 Mar 2004

In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the documents retained the characteristic which gave it protection from disclosure.

Judges:

Mann J

Citations:

[2004] EWHC 373 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .
Cited – Black v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 10 June 2022; Ref: scu.194434

Bottin (International) Investments Limited v Venson Group Plc Grant Scriven Clive Lawson Smith: ChD 3 Feb 2004

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2004] EWHC 135 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .

Cited by:

Appeal from – Bottin (International) Investments Ltd v Venson Group Plcgrant Scriven Clive Lawson Smith CA 22-Oct-2004
Under a share purchase agreement, ‘notice of the claim had to be made in writing ‘specifying such details of the event or circumstances giving rise to such claim as are available to the investor and an estimate (if capable of preparation by the . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 09 June 2022; Ref: scu.192611

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.

Judges:

Hildyard J

Citations:

[2013] EWHC 3957 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006

Jurisdiction:

England and Wales

Company

Updated: 09 June 2022; Ref: scu.518944

Dunblane Property Limited Anthony Richard Rand, v Motorcare Holdings Limited Motorcare Services Limited,: CA 29 Jul 2003

The claimants sought damages for breach of a share sale agreement. The decision concerned the particular terms of this agreement.

Judges:

Lord Justice Clarke Lord Justice Sedley The President

Citations:

[2003] EWCA Civ 1033

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract

Updated: 07 June 2022; Ref: scu.184855

Goldstein v Levy Gee ( A Firm): ChD 1 Jul 2003

There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for valuation.
Held: Part of the skills of a chartered accountant, especially one who is willing to undertake a valuation of shares, is the valuation of shares. The properties should not have been valued on a portfolio basis. Too great a deduction for contingent tax was allowed. A deduction for non-listed status was based on an error of principle, but was within the permissible range. He was not negligent in making a deduction to reflect a 75 per cent probability that the options would be exercised. The permissible range is between 50 and 75 per cent. The mean is 62.5 per cent. The valuation remained within the permissible range. Negligence would not be shown if the figure advised was within the range of permissible figures, even if it was reached negligently. Where a figure was made up of several others, a brackert was to calculated for each, not just for those involving negligence. No loss was shown and the action dismissed.

Judges:

The Honourable Mr Justice Lewison

Citations:

Gazette 11-Sep-2003, HC 02 C00884, [2003] EWHC 1574 (Ch), Times 16-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Singer and Friedlander Ltd v Wood 1977
Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .
Cited – Mount Banking Corporation Ltd v Brian Cooper and Co QBD 1992
The plaintiff submitted that where the final valuation figure is within the Bolam principle, an acceptable figure, albeit towards the top end, but where none the less the valuer has erred materially in reaching that figure, the plaintiff can succeed . .
Cited – Zubaida v Hargreaves CA 1995
In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as . .
Cited – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Cited – Lion Nathan Limited and others v C C Bottlers Limited and others PC 14-May-1996
(New Zealand) A company was sold with a warranty that the sales figures would meet projected earnings. The purchaser successfully complained after the event that the figures were false and misleading. They appealed an order increasing the damages on . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Legal and General Mortgage Services v HPC Professional Services 1997
The claimant submitted that he was entitled to succeed in his claim gthat a valuation was negligent, either by showing that the valuer’s final figure was outside the bracket within which any competent valuer using reasonable skill and care could . .
Cited – Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA 22-Apr-1999
An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Curry’s Group Plc v Martin QBD 13-Oct-1999
The valuer valued a lease for a rent review clause, after advice, on the basis that the rent stated was to be a headline rent. The claim was dismissed because a valuer acting in such a situation was not substantially different from one undertaking a . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Sansom and Another v Metcalfe Hambleton and Co CA 17-Dec-1997
The court warned against finding a professional to have been negligent on the evidence of an expert who was not a member of the same profession. A structural survey was prepared by a chartered surveyor. Expert evidence for the plaintiff was given, . .
Cited – Whiteoak v Walker ChD 1988
The articles of association of a private company provided for shares to be valued by the auditor. The plaintiff transferred shares at a price fixed by the auditor, and subsequently alleged that the valuation was negligently made. One of the issues . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence

Updated: 07 June 2022; Ref: scu.184170