Tag: Company

The 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 case followed findings in substantial litigation. It was not realistic of the director to suggest that he had had a proper defence in that action. He did not. The fact that others might be involved did not reduce the applicant’s culpability.

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2003] EWHC 532 (Ch)

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 1A 8

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – In 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. . .
Cited – re Swift 736 Limited 1993
The purpose of the jurisdiction created under the Act is to promote better management standards in companies. . .
Cited – In the Matter of Blackspur Group Plc; Secretary of State for Trade and Industry v Davies; Thomas; Thompson; Andrew CA 19-Nov-1997
The Secretary of State may perfectly properly refuse to accept offered undertakings and instead decide to prosecute company directors under the Act, even though though the terms offered were intended to give equivalent effect. The purpose of the . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – re Queen’s Moat House Plc ChD 5-Dec-2001
The interests of justice are unlikely to require a second investigation of facts, which have already been the subject matter of an exhaustive examination. . .
Cited – In re Thomas Christy Limited ChD 1994
Findings by a Lloyds’ disciplinary committee could not give rise to an issue estoppel in later court proceedings. . .
Cited – Deakin and Others v Faulding and Others; Specialist Group International Ltd v Deakin and Others; etc ChD 31-Jul-2001
Directors of a company authorised payment of bonuses, but the power to do so lay with the shareholders, not the directors. However, the beneficial owner of a share held for him by a nominee could give assent to a motion of the company at a general . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 07 June 2022; Ref: scu.180334

Lankhorst-Hohorst GmbH v Finanzamt Steinfurt: ECJ 12 Dec 2002

German law taxed interest paid on loan repayments made by a company against a loan from a shareholder, but only where the shareholder was not resident in the same country as the company. The tax authority took the view that the payments were a equivalent to a covert distribution of profits.
Held: This was discriminatory, and offended the principal of freedom of establishment. It was wrong to compare the position of a company trading for profit with corporations exempt from corporation tax. Reduction in tax revenue is not an overriding reason in the public interest capable of justifying a measure contravening a fundamental principle.

Judges:

Wathelet, President, Timmermans, Edward, Jann and Rosas JJ

Citations:

Times 27-Dec-2002, C-324/00, [2002] EUECJ C-324/00, [2002] ECR I-11779, [2003] STC 607

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Lists of cited by and citing cases may be incomplete.

European, Corporation Tax, Company

Updated: 06 June 2022; Ref: scu.178612

Riccardo Prisco Srl v Amministrazione delle Finanze dello Stato; and Ministero delle Finanze v CASER SpA: ECJ 10 Sep 2002

References for a preliminary ruling: Tribunale di Milano and Corte d’appello di Roma – Italy. Directive 69/335/EEC – Indirect taxes on the raising of capital – Articles 10 and 12(1)(e) – Register of companies – Registration of companies’ instruments of incorporation and other company documents – Recovery of sums paid but not due – Procedural time-limits under national law – Interest.

Citations:

C-216/99, C-222/99, [2002] EUECJ C-216/99, [2002] EUECJ C-222/99

Links:

Bailii, Bailii

Jurisdiction:

European

Company

Updated: 06 June 2022; Ref: scu.177338

Ross Harper and Murphy and others v Scott Banks: OHCS 11 May 2000

Judges:

Lord Hamilton

Citations:

[2000] ScotCS 120

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Ross Harper and Murphy and others v Scott Banks IHCS 24-May-2000
Justinian’s rule that one partner accepted the negligence of another is not part of Scottish law, and a partner did owe a duty of care in his dealings for the partnership, and could be liable in negligence. Nevertheless, acts which may be negligent . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 June 2022; Ref: scu.170387

Micro Leisure Limited v County Properties and Developments Limited and Another: OHCS 15 Oct 1999

When the court looked at the acquisition of property from a company by a director or a person connected with that director, and had to assess the objective value of the property acquired, the court had to look at the value as judged to the person acquiring the property rather than the market value.

Judges:

Lord Hamilton

Citations:

Times 12-Jan-2000, [1999] ScotCS 240

Links:

Bailii

Statutes:

Companies Act 1985 320(2)

Jurisdiction:

Scotland

Company

Updated: 05 June 2022; Ref: scu.169511

Agrotexim and Others v Greece: ECHR 24 Oct 1995

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

Citations:

14807/89, (1996) EHRR 250, [1995] ECHR 42

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Adopted – Humberclyde Finance Group Ltd v Hicks 14-Nov-2001
. .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Company

Updated: 04 June 2022; Ref: scu.165381

CMS Dolphin Ltd v Paul M Simonet and Another: ChD 23 May 2001

The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements about the extent of capital to be introduced. The defendant asserted that this happened after he had been marginalised within the old company and had resigned as director at the invitation of the other partner.
Held: The power to resign is not itself a fiduciary power. A resigning director could not take to himself a business opportunity maturing within the first company. He became a constructive trustee of that maturing business opportunity. In this case the defendant had so acted. He was liable personally even though the opportunity was pursued through a second limited company.
Lawrence Collins J said: ‘In my judgment the underlying basis of the liability of a director who exploits after his resignation a maturing business opportunity of the company is that the opportunity is to be treated as if it were property of the company in relation to which the director had fiduciary duties. By seeking to exploit the opportunity after resignation he is appropriating for himself that property. He is just as accountable as a trustee who retires without properly accounting for trust property. In the case of the director he becomes a constructive trustee of the fruits of his abuse of the company’s property, which he has acquired in circumstances where he knowingly had a conflict of interest, and exploited it by resigning from the company.’

Judges:

Justice Lawrence Collins

Citations:

[2001] EWHC Ch 415, [2001] 2 BCLC 704

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Canadian Aero Service Ltd v O’Malley 1973
(Supreme Court Canada) Mr O’Malley and Dr Zarzycki were senior officers of the claimant (‘Canaero’). Having attempted, unsuccessfully, to procure a contract for Canaero to carry out a topographical survey and mapping of part of Guyana, they resigned . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Imperial Mercantile Credit Association v Coleman HL 1873
Where a company director puts the benefit of a company contract into a partnership, he is fully accountable even if his partners are entitled to part of the profit and are ignorant of his breach of fiduciary duty. . .
See Also – Profilati Italia SRL and Painewebber Inc v Painewebber International Futures Ltd ComC 23-Jan-2001
An award was challenged on the grounds that the successful party had failed to make proper disclosure.
Held: Moore-Bick J applied the test whether there was ‘any substantial likelihood that disclosure . . would have resulted in the tribunal . .

Cited by:

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 – 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 – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Company, Arbitration

Updated: 04 June 2022; Ref: scu.163019

Shuttleworth v Secretary of State for Trade and Industry: ChD 9 Feb 1999

The discretion of the court to allow a disqualified company director to take on the duties of a director, is complete and is not to be fettered. Whether the reason for wanting to act is personal or for business is not decisive.

Citations:

Times 09-Feb-1999, Gazette 24-Feb-1999

Statutes:

Company Directors Disqualification Act 1986 17

Jurisdiction:

England and Wales

Company

Updated: 04 June 2022; Ref: scu.89249

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. Thorley submitted that if a product had been made available to the public, it was not possible thereafter to patent the product whether claimed as a product claim or a product-by-process claim. That submission is too broad. Under the 1977 Act, patents may be granted for an invention covering a product that has been put on the market provided the product does not provide an enabling disclosure of the invention claimed. In most cases, prior sale of the product will make available information as to its contents and its method of manufacture, but it is possible to imagine circumstances where that will not happen. In such cases a subsequent patent may be obtained and the only safeguard given to the public is section 64 of the Act.’ The test is the same under the Patents Acts 1949 and 1977.
As to the case of Catnic: ‘Lord Diplock was expounding the common law approach to the construction of a patent. This has been replaced by the approach laid down by the Protocol. If the two approaches are the same, reference to Lord Diplock’s formulation is unnecessary, while if they are different it is dangerous.’
The court considered the liability of a company director for the infringement, the authorities clearly showed ‘that a director of a company was not automatically to be identified with his company for the purpose of the law of tort, however small the company may be and however powerful his control over its affairs’ and that ‘in every case where it is sought to make him liable for his company’s torts, it is necessary to examine with care what part he played personally in regard to the act or acts complained of’. Also: ‘I believe it is clear that a director will not be liable unless his involvement would be such as to render him liable as a joint tortfeasor if the company had not existed. For example, the law distinguishes between facilitating and procuring a tort. A person who only facilitates a tort is not liable as a joint tortfeasor whereas a person who procures the tort is liable.’

Judges:

Aldous J

Citations:

[1993] FSR 197

Statutes:

Patents Act 1977 2(2) 64

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Townsend v Haworth CA 1875
The defendant sold chemicals to be used by the purchaser in infringement of patent and agreed to indemnify the purchaser if the patent should prove to be valid.
Held: Only the person who actually manufactures or sells infringing goods is the . .
Cited – B E Lavender v Witten Industrial Diamonds 1979
. .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc HL 12-May-1988
The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .

Cited by:

Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Appeal from – PLG Research Ltd and Another v Ardon International Ltd and Others CA 1995
As to Catnic: ‘Lord Diplock was expounding the common law approach to the construction of a patent. This has been replaced by the approach laid down by the Protocol. If the two approaches are the same, reference to Lord Diplock’s formulation is . .
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 – Merrell Dow Pharmaceuticals Inc and Another v H N Norton and Co Ltd; Same v Penn Etc HL 26-Oct-1995
A patent for a substance which had been produced naturally before the application of the process was invalid. The patent was invalidated after the discovery that the effect was produced naturally from an acid metabolite. Patent infringement does not . .
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credit Guarantee Department CA 23-Jul-1997
The bank claimed that it had been defrauded, and that since an employee of the defendant had taken part in the fraud the defendant was had vicarious liability for his participation even though they knew nothing of it.
Held: Where A becomes . .
Cited – Hadley Industries Plc v Metal Sections Limited, Metsec (UK) Limited PatC 13-Nov-1998
A court no longer has the discretion as to whether to amend a patent upon application, but must, following European practice, do so when a proper application is made. This is the case despite the clear wording of the English Act. A judge at first . .
Cited – Springsteen v Flute International Ltd and Others PatC 10-Dec-1998
The court awarded andpound;1 per CD produced and not sold, and andpound;5 per CD produced and sold for infringement by pressing CDs of recordings of the claimant artist’s performances. The court considered the personal responsibility of the director . .
Cited – Stocznia Gdanska SA v Latvian Shipping Company and Others ComC 25-May-2001
When a claimant commenced litigating several issues, but succeeded only on some of the them, the rule allowing an award of costs to the generally successful party was not dependent upon questions of whether the party was reasonable to have raised . .
Cited – Asahi Medical Co Ltd v Macopharma (UK) Ltd, Macopharma S A CA 16-Apr-2002
. .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Company

Updated: 02 June 2022; Ref: scu.84773

Deakin and Others v Faulding and Others; Specialist Group International Ltd v Deakin and Others; etc: ChD 31 Jul 2001

Directors of a company authorised payment of bonuses, but the power to do so lay with the shareholders, not the directors. However, the beneficial owner of a share held for him by a nominee could give assent to a motion of the company at a general meeting. The company sought repayment of the bonuses.
Held: Where all the shareholders who could have voted, attended a meeting at which they assented to some act, they are to be treated as if that act had been taken at a shareholders meeting.

Judges:

The Hon Mr Justice Hart

Citations:

Times 29-Aug-2001, Gazette 13-Sep-2001, [2001] EWHC Ch 7

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

applied – In Re Duomatic Ltd ChD 1969
Payments were made by a company by way of remuneration to directors without complying with the company’s articles of association in that no resolution authorising the directors to receive remuneration had ever been passed in a general meeting of the . .
See Also – Specialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .

Cited by:

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

Company

Updated: 01 June 2022; Ref: scu.159888

Bermuda 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.

Judges:

Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Steyn Lord Cooke of Thorndon Lord Clyde

Citations:

Times 31-Oct-1997, [1997] UKPC 44

Links:

Bailii

Statutes:

Companies Act 1985 459, Companies Act 1981 (Bermuda) 111

Citing:

Distinguished – British American Tobacco Company Limited v Inland Revenue Commissioners HL 1943
The House considered whether British American had a ‘controlling interest’ in a subsidiary of its direct subsidiary. The company argued that ‘controlling interest’ equated to beneficial ownership. In rejecting that argument Viscount Simon said: ‘I . .
Distinguished – Inland Revenue Commissioners v J Bibby and Sons Limited HL 17-May-1945
The House was asked whether shares in a company held by directors as trustees could be aggregated with shares held by them beneficially for the purpose of determining whether the directors had ‘a controlling interest’ in the company.
Held:
Distinguished – Barclays Bank Limited v Inland Revenue Commissioners HL 1960
A testator did have the control of a company within section 55(1) of the 1940 Act, by virtue of the fact that he held shares as an individual in his own right and also was entitled to vote as a trustee for a further allocation of shares (making . .
Cited – Daimler Co Ltd v Continental Tyre and Rubber Company (Great Britain) Limited HL 1916
The House considered the meaning of ‘control’ in the context of companies. Lord Parker of Waddington said: ‘I think that the analogy is to be found in control, an idea which, if not very familiar in law, is of capital importance and is very well . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
Cited – Jenkin v Pharmaceutical Society of Great Britain 1921
At common law that a member of a company incorporated by Royal Charter is entitled to an order restraining the commission of acts outside the scope of the charter which may result in the forfeiture of the charter and the destruction of the society. . .
Cited – 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 . .
Cited – Phillips v Britannia Hygienic Laundry Co Ltd CA 1923
A breach of the regulation does not give rise to an action for damages. The distinction between misfeasance and non-feasance should no longer have significance. Atkin LJ said: ‘one who cannot be otherwise specified than as a person using the . .
Cited – 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 . .
Cited – Ebrahimi 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 . .
Cited – National Westminster Bank Plc and Another v Inland Revenue Commissioners HL 24-Jun-1994
Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES . .
Cited – Bratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
Cited – Scally v Southern Health and Social Services Board HL 1991
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 01 June 2022; Ref: scu.159255

Secretary of State for Trade and Industry v Baker, Bax, Broadhurst and others: CA 9 Jun 1998

Application for leave to appeal agaist orders made against the directors of Barings plc following its collapse. The appellants alleged abuse of process and unfairness and double jeopardy.
Held: ‘It is true that the underlying facts of the charges brought by the SFA and the Secretary of State are the same. However, as Lord Justice Chadwick has set out very fully in his judgment, the status, the issues and the consequences of the two sets of proceedings have very important differing features. ‘ The application was dismissed.

Judges:

Swinton Thomas, Waller, Chadwick LJJ

Citations:

[1998] EWCA Civ 943, [1999] 1 WLR 1985, [1999] 1 BCLC 226, [1999] BCC 639, [1999] 1 All ER 311

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Company, Natural Justice

Updated: 30 May 2022; Ref: scu.144422

In Re Cameron’s Coalbrook and Co Railway Company, Ex Parte Bennett: 16 Mar 1854

Directors of a public companY are trustees for the shareholders, and their private interests must yield to their public duty whenever they are conflicting.
Directors permitted a class of dissentient shareholders in an embarrassed company to tranefer their shares to the company, under a power in the deed, upon payment of a sum of money, which it was arranged should be paid to one of the directors in discharge of a debt due from the Company. Held, that the transaction was void, and, on winding up the company, that the dissentients still remained shareholders.

Citations:

[1854] EngR 356, (1854) 18 Beav 339, (1854) 52 ER 134

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 22 May 2022; Ref: scu.293213

Brink’s Mat Ltd v Noye: CA 1991

The proceeds of the theft of gold bullion from a warehouse owned by the plaintiffs were laundered through the bank account of a company called Scadlynn Ltd with Barclays Bank. The directors and sole shareholders of Scadlynn were signatories of the account and drew cheques on it for cash totalling nearly andpound;8m over four months. The plaintiffs sought to enforce rights which Scadlynn was said to possess against the bank in consequence of the payments out of its account. The court was asked whether the pleading should be permitted, raising in turn the question, among others, whether it was open to Scadlynn to sue the bank in respect of withdrawals made or authorised by the company’s sole directors and shareholders.
Held: there was no reason why Scadlynn, which was being put into compulsory liquidation, should be prevented from enforcing such a claim for the benefit of the creditors who would look to the assets for the satisfaction of their debts.
Nicholls LJ described the existence of the directors’ fiduciary duties to the company as a means by which the law sought to protect the company’s creditors.
Mustill LJ rightly described Scadlyn as being an intended victim of arrangements intended dishonestly to deprive it of a large part of its assets and Nicholls LJ agreed with him.

Judges:

Mustill and Nicholls LJJ and Sir Roualeyn Cumming-Bruce

Citations:

[1991] 1 Bank LR 68

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Banking, Company

Updated: 20 May 2022; Ref: scu.566002

John Graham, On Behalf Of Himself And All Other The Shareholders Or Proprietors Of Shares In The Birkenhead, Lancashire, And Cheshire Junction Railway Company, Except Such As Are Defendants Hereto v The Birkenhead, Lancashire, And C: 30 May 1850

The directors of a railway company, with the concurrence of a majority of the shareholders, on finding the original undertaking impracticable, proceeded to construct a small portion only of the works. On an application by an individual shareholder on behalf of himself and the other shareholders for an injunction to restrain this proceeding, the Court refused to interfere on the ground of the acquiescence of the Plaintiff, and also that the other shareholders had for eighteeri months previously to filing the bill known, or had had the means of knowiiig, the Acts complained of.

Citations:

[1850] EngR 591, (1850) 2 Mac and G 146, (1850) 42 ER 57

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 20 May 2022; Ref: scu.297938

Dubai Bank Ltd v Galadari and Others (No 5): 25 Jun 1990

A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated.

Citations:

Times 25-Jun-1990

Jurisdiction:

England and Wales

Citing:

See Also – Dubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .

Cited by:

See Also – Dubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Lists of cited by and citing cases may be incomplete.

Company, International

Updated: 20 May 2022; Ref: scu.241345

Director of Public Prosecutions v Gomez: HL 3 Dec 1992

The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of property belonging to another had taken place.
Held: An appropriation of goods sufficient to found a charge of theft may occurr when the consent to the act is obtained by a deception, and which deception results in the voidable transfer of ownership. Goods obtained by a deception might also be subject to a theft charge, because of the assumption of the rights of an owner.
Lord Browne-Wilkinson said: ‘ . . it would offend both common sense and justice to hold that the very control which enables such people to extract the company’s assets constitutes a defence to a charge of theft from the company. The question in each case must be whether the extraction of the property from the company was dishonest, not whether the alleged thief has consented to his own wrongdoing.’

Judges:

Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Lowry (dissenting), Lord Browne-Wilkinson and Lord Slynn of Hadley

Citations:

Gazette 03-Mar-1993, Times 08-Dec-1992, [1993] AC 442, [1992] UKHL 4, [1993] 1 All ER 1

Links:

Hamlyn, Bailii

Statutes:

Theft Act 1968 1(1)

Citing:

Approved – Lawrence v Metropolitan Police Commissioner HL 30-Jun-1971
The defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of andpound;6 for a journey for which the correct lawful fare was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention . .
Appeal from – Regina v Gomez CACD 1991
The defendant was an assistant shop manager. He accepted two cheques which he knew to be stolen from a customer in exchange for goods, by persuading the manager that the cheques were valid. He was accused of theft of the goods. He answered that a . .
Approved – Attorney-General’s Reference (No. 2 of 1982) CACD 1984
Two men were charged with theft from a company which they wholly owned and controlled. The court considered the actions of company directors in dishonestly appropriating the property of the company, and whether since the title to the goods was . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Explained and Limited – Regina v Morris (David); Anderton v Burnside HL 2-Jan-1983
The defendants had been accused of theft. One switched labels on a joint of pork in a supermarket, and the other presented the meat with the now cheaper label for purchase.
Held: The appeals were dismissed. There can be no conviction for theft . .
Cited – Dobson v General Accident Fire and Life Assurance Corporation Plc CA 1989
The plaintiff sought to claim under his household insurance. He sold some jewelry, accepting a building society cheque which turned out later to be stolen. He argued that his loss was ‘loss or damage caused by theft’ The insurer argued that there . .
Cited – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – Phillips v Brooks Ltd 1919
A jeweller had a ring for sale. The buyer pretended to be somebody else: ‘I am Sir George Bullough of 11 St. James’s Square.’ The jeweller had heard of Sir George Bullough and checked he lived at the address given. He released the jewellry against . .
Cited – Regina v Desmond HL 1965
The House analysed the authorities on the law of larceny and robbery, and declared its current state. While in earlier times robbery may have been limited to where there was actual violence, it became sufficient that there was ‘a putting in fear of . .
Wrongly decided – Regina v Fritschy CACD 1985
The defendant was instructed by the owner to collect a quantity of krugerrands in London and deliver them to a safe deposit in Switzerland. The defendant, having once collected the coins, took them to Switzerland and there made away with them. The . .
Cited – Regina v Skipp CACD 1975
The defendant, presented himself as a contractor, and was instructed to collect and deliver consignments of goods from three different places. Having collected the goods he made off with them. He faced one count of theft in respect of the three . .
Cited – Regina v Kassim HL 19-Jul-1991
The trial judge had held that a telex message requesting payment of andpound;960,000 had been ‘executed’ because it had been put into effect.
Held: A valuable security was not executed when the drawer’s bank acted upon the cheque, or request . .
Cited – Regina v Philippou CA 1989
The defendants were sole directors and shareholders of their company. They appealed a conviction of theft from the company.
Held: The convictions stood. ‘Appropriates’ is to be given its ordinary English meaning, namely, ‘takes as one’s own or . .
Cited – Regina v McHugh CACD 1988
In cases alleging corporate fraud it is necessary to look very carefully at the nature and limits of the authority before considering whether the questioned transaction is in truth a transaction authorised by the company. . .
Disapproved – Regina v Roffel 19-Dec-1984
(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The . .
Cited – Salomon 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 – Regina v Shuck CACD 1992
The defendant was a company officer. He gave instructions to an innocent third party which resulted in the dishonest diversion of substantial sums of the company’s money. He appealed the judge’s interpretation of the word ‘appropriation.’
Cited – Whitehorn Brothers v Davison CA 1911
It is for the defrauded owner seeking to recover his goods to prove that the purchaser had actual or constructive knowledge of the fraud. The passing of a good title to an innocent purchaser applied when the owner had been induced by false pretences . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
Cited – Wimpey (George) Co Ltd v British Overseas Airways Corporation HL 1954
A joint tortfeasor could escape liability in contribution proceedings if it had been unsuccessfully sued by the injured person in an action brought outside the relevant limitation period. Where a court has to decide between two competing cases, if . .

Cited by:

Confirmed – Regina v Hinks HL 27-Oct-2000
A woman befriending an older man of limited intelligence accepted daily cash payments from his building society over eight months, claiming them to be gifts. She now appealed against her conviction for theft.
Held: (Lord Hutton dissenting) For . .
Cited – Wheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
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 . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 19 May 2022; Ref: scu.86704

Regina v Chester and North Wales Legal Aid Area Office Ex Parte Floods of Queensbury Ltd: QBD 7 Nov 1997

It was possible for a body to apply for legal aid but only if it was genuinely acting in a fiduciary capacity as trustee, not mere contractual representative.

Citations:

Times 07-Nov-1997, [1997] EWHC Admin 883

Links:

Bailii

Statutes:

Legal Aid Act 1974 2(10), Legal Aid Act 1988 2(10)

Cited by:

Appeal from – Regina v Chester and North Wales Legal Aid Area Office (No 12) ex parte Floods of Queensferry Limited CA 18-Dec-1997
A company was not entitled to legal aid unless it was clearly acting in a fiduciary capacity; that the assignment of an action is invalid is insufficient to warrant a grant. . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Company

Updated: 19 May 2022; Ref: scu.86343

Practice Statement (Companies Court): ChD 19 Jan 2000

From January 2000, applications in company matters need not be heard only by a companies judge, and matters which had previously been listed on Mondays for this purpose need no longer be so listed. Urgent applications would also be dealt with by the applications judge.

Citations:

Times 19-Jan-2000

Jurisdiction:

England and Wales

Company, Litigation Practice

Updated: 19 May 2022; Ref: scu.84999

Don King Productions Inc v Warren and Others: ChD 13 Apr 1998

Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence of an obligation binding the conscience of the person vested with the legal ownership is the hallmark of a trust.’ and ‘in principle I can see no objection to a party to contracts involving skill and confidence or containing non-assignment provisions from becoming trustee of the benefit of being the contracting party as well as the benefit of the rights conferred. I can see no reason why the law should limit the parties’ freedom of contract to creating trusts of the fruits of such contracts received by the assignor or to creating an accounting relationship between the parties in respect of the fruits.’

Judges:

Lightman J

Citations:

Times 13-Apr-1998, Gazette 13-May-1998, [2000] Ch 291, [1998] 2 All ER 608

Citing:

See Also – Don King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Cited – Vandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .

Cited by:

See Also – Don King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Appeal from – Don King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
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 – Barbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 19 May 2022; Ref: scu.80091

Cheah Theam Swee v Equitcorp Finance Group Ltd and Another: PC 5 Nov 1991

(New Zealand) A had given two charges over his shares to different lenders. The charges came to be both owned by the same person, who obtained judgment under the first charge, but then exercised its power of sale under the second, waiving its priority under the first. The chargor complained that the chargee should have exercised his power under the first charge which would have discharged the judgment.
Held: Owners of different mortgagees of a property can agree to alter the priority of their respective charges irrespective of the wishes of the chargor, and without needing his consent. The mortgagor had no control over which remedy was taken by the chargees.

Citations:

Gazette 08-Jan-1992, [1991] 4 All ER 989, [1991] UKPC 39

Links:

Bailii

Citing:

Distinguished – Palmer v Hendrie 1859
. .
See Also – Cheah Theam Swee v Equiticorp Finance Group Ltd. And, Equiticorp Nominees Ltd PC 12-Jul-1989
New Zealand . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Commonwealth

Updated: 19 May 2022; Ref: scu.78999

Browell and Others v Goodyear: ChD 24 Oct 2000

When a partnership of solicitors was dissolved, the main asset was the work in progress comprised in substantial personal injury litigation being conducted, in effect, on a conditional fee basis. The question arose of how it could be valued. The court discarded foreign judgments which gave nil value to such assets for taxation purposes, and also the ‘realisation’ basis sometimes used in Britain. Instead the court had to assess the proportion of work which might prove successful, and to establish what proportion of the work had already been concluded, making allowance for the need for simplicity of calculation, the necessary inexactitude, and giving the benefit of any doubt to those who might complete the work.

Citations:

Times 24-Oct-2000

Company, Legal Professions

Updated: 18 May 2022; Ref: scu.78685

Barings Plc and Another v Coopers and Lybrand (A Firm) and Others: ChD 13 Aug 1996

The need to reach one conclusion justified service of proceedings overseas on a firm’s partners, where there was a genuine issue to be decided

Citations:

Times 13-Aug-1996, Gazette 23-Oct-1996, [1996] EWCA Civ 1025

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Barings Plc and Another v Coopers and Lybrand (A Firm) and Others CA 6-Dec-1996
Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue. . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice

Updated: 18 May 2022; Ref: scu.78229

Attorney-General’s Reference (No 2 of 1999): CACD 29 Feb 2000

A conviction for manslaughter by gross negligence did not require proof of a defendant’s state of mind. Nevertheless such evidence might well be useful in other ways. A body corporate could be guilty of manslaughter by gross negligence, but only if at least one identified individual was shown to be guilty of the same crime. Corporate manslaughter did not require evidence of the state of mind of the corporation, but somebody no doubt within the corporation must also be identified as responsible in law.

Judges:

Rose LJ

Citations:

Times 29-Feb-2000, Gazette 02-Mar-2000, [2000] QB 796

Cited by:

Cited – Regina on the Application of Rowley v Director of Public Prosecutions QBD 4-Apr-2003
The applicant sought to challenge a decision not to prosecute a third party following the death of her son. He had been in care, having multiple disabilities, including epilepsy. He drowned whilst in a bath. It had been recognised that he needed . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 18 May 2022; Ref: scu.78005

Gray v Raper: CCP 1866

The defendants had given promissory notes to a friendly society, which came to be dissolved. An action was brought for recovery of the debts, but without the necessary permission first.
Held: The failure was not one to be taken advantage of in the plea to the further maintenane of the action, but only, and if at all, by making application to the court having in hand the winding up of the company.

Citations:

(1866) LR 1CP 694

Statutes:

Companies Act 1862

Cited by:

Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 May 2022; Ref: scu.567256

Farrer v Beswick: 1836

Baron Parke said: ‘I have always understood, until the doubt was raised in Barton v. Williams, that one joint-tenant or tenant in common of a chattel could not be guilty of a conversion by a sale of that chattel, unless it were sold in such a manner as to deprive his partner of his interest in it. A sale in market overt would have that effect.’

Judges:

Baron Parke

Citations:

1836 Meeson and Welsby’s Reports 682

Cited by:

Cited – Regina v Bonner and Others CACD 24-Feb-1970
The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions . .
Lists of cited by and citing cases may be incomplete.

Company, Torts – Other

Updated: 18 May 2022; Ref: scu.566424

Regina v ICR Haulage Ltd: KBD 1944

A company can be guilty of conspiracy, in this case to defraud. Both the managing director and, through him, the haulage company were convicted of conspiracy to defraud. His acts ‘were the acts of the company and the fraud of that person was the fraud of the company’.
‘Where the only punishment which the court can impose is death, for this purpose the basis of this exception is being that the court will not stultify itself by embarking on a trial in which, if the verdict of guilt is returned, no effective order by way of sentence can be made.’

Citations:

[1944] KB 551, [1944] 1 All ER 691

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company, Crime

Updated: 18 May 2022; Ref: scu.565998

Moore v I Bresler Ltd: KBD 1944

The company had been required to make a return for revenue purposes (purchase tax) and the statute made it an offence to make a false return with intent to deceive. The company was charged with such, but responded that the action was of employees .
Held: The mens rea of the servant authorised to discharge the duty to make the return should be attributed to the company. The Court focussed on the question whether the officers were acting within the scope of their authority and concluded that they were, notwithstanding that the purpose of the dishonest purchase tax returns was to conceal the defendant’s own theft from the company.
Viscount Caldecott LCJ described the officers as important officials of the company
Humphreys J said that it was difficult to imagine two persons whose acts would ‘more effectively bind the company’ and who could be said to be more obviously agents of the company

Judges:

Humphreys J, Viscount Caldecott LCJ

Citations:

[1944] 2 All ER 515

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 May 2022; Ref: scu.565996

Bank of Tokyo Ltd v Karoon (Note): 1986

Robert Goff LJ considering a request for an anti-suit ijunction, said: ‘foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceeding’. He went on to say: ‘Counsel suggested beguilingly that it would be technical for us to distinguish between parent and subsidiary company in this context; economically, he said, they were one. But we are concerned not with economics but with law. The distinction between the two is, in law, fundamental and cannot here be bridged.’

Judges:

Robert Goff LJ

Citations:

[1987] AC 45, [1986] 3 All ER 468, [1986] 3 WLR 414

Cited by:

Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 May 2022; Ref: scu.519364

Balston 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 the company had informed them of an impending price increase and that supplies would be discontinued. The defendant told the customer that he was leaving, and said he would be able to supply them himself. He began to prepare his business, buying in stock and taking on former and current employees of the claimant. The claimant now alleged breach of his fiduciary duties as director, of acting in conflict of interest, and of his duties of faithfulness as an employee.
Held: The mere intention to set up a competing business whilst employed as a director was not a breach of fiduciary duty, and nor did he have a duty to disclose that intention. Though general preparation were not a breach of his duty of fidelity as an employee, the taking of an order from a customer, and the taking on of an employee did each amount to such a breach.
There was no misues of confidential information. Although the new business used similar fibre mixes, the defendant’s own skill could account for his preparation of them without misuse of the claimant’s confidential information.
Falconer J said: ‘In my judgment an intention by a director of a company to set up business in competition with the company after his directorship has ceased is not to be regarded as a conflicting interest within the context of the principle, having regard to the rules of public policy as to restraint of trade, nor is the taking of preliminary steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he remains a director.’

Judges:

Falconer J

Citations:

[1990] FSR 385

Jurisdiction:

England and Wales

Citing:

Cited – Robb v Green 1895
An employee intending to enter business for himself may prepare for that step, provided he does not breach terms of his contract of employment or breach the confidence reposed in him by his employers. The duty may be breached by an employee . .
Cited – 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 . .
See Also – Balston Ltd v Headline Filters Ltd and Another 1987
The second defendant, whilst still during his notice period to leave employment by the plaintiff, began to make arrangements to start his own competing business, and solicited future business from a customer of the plaintiff. The plaintiff sought an . .
Cited – Island Export Finance v Umunna ChD 1986
The defendant director had resigned from the plaintiff company from dissatisfaction with its progress. He later received an order from the company’s former customer. The court considered the continuing duties of a company director after the . .

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 . .
Cited – Whitmar Publications Ltd v Gamage and Others ChD 4-Jul-2013
Whitmar claimed damages for breach of contract; an account of profits; damages for breach of fiduciary duty and/or for infringement of its Database Rights under the Copyright and Rights in Database Regulations 1997; and for a permanent injunction . .
Lists of cited by and citing cases may be incomplete.

Employment, Company

Updated: 18 May 2022; Ref: scu.442530

In re Standard Manufacturing Co: CA 1891

Company debentures were expressly excepted from the operation of the Bills of Sales Act (1878) Amendment Act 1882 by section 17 of that Act because they were debentures ‘issued by any mortgage, loan, or other incorporated company’. Nor were debentures bills of sale to which the Act of 1878 applied and company debentures themselves were not within the 1878 Act. The avowed design of the legislature had been to strike at frauds perpetrated upon creditors by secret bills of sale as the preamble to the Bills of Sale Act 1854 made plain: ‘Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors.’
The 1862 Act provided for the registration by companies of the mortgages and charges specifically affecting their property and accordingly company debentures could hardly be described as ‘secret documents’.
The court concluded: ‘mortgages or charges of any incorporated company for the registration of which a statutory provision had already been made by the Companies Clauses Act 1845 or the Companies Act 1862 are not bills of sale within the Bills of Sale Act 1878.’

Citations:

[1891] 1 Ch 627

Statutes:

Bills of Sales Act (1878) Amendment Act 1882, Bills of Sales Act 1878, Bills of Sale Act 1854, Companies Act 1862, Companies Clauses Act 1845

Citing:

Applied – Read v Joannon 1890
The court considered the application of the 1878 Act.
Held: Where there are a series of Acts dealing with a topic and with similar names, the words ‘this Act’ in expressions such as ‘in this Act’ or ‘under this Act’ must be construed to mean . .

Cited by:

Cited – Clark v Balm, Hill and Co 1908
A company registered in Guernsey issued debentures creating floating charges over real and personal property in England. The court was asked whether the debentures ought to be deemed to be within the Bills of Sales Acts and so ought to have been . .
Cited – Online Catering Ltd v Acton and Another CA 10-Feb-2010
The claimant agreed for the defendant to repair its fleet of vehicles. The defendant, having fees outstanding, entered the claimants’ premises and removed vehicles saying falsely that they were to be repaired, and then refused to return them. The . .
Distinguished – Great Northern Railway Co v Cole Co-Operative Society 1896
A business created under the Industrial and Provident Societies Acts is not a company in any standard legal sense. Vaughan Williams J distinguished Standard Manufacturing on the basis that the Court of Appeal was not excluding companies generally . .
Cited – N V Slavenburg’s Bank v Intercontinental Natural Resources Ltd ChD 1980
The Bermudan company defendant had assigned stocks as a security. The security was not registered, and nor did the company have any registration within the UK. It was not the practice of the Registrar of Companies to accept particulars of charges . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 18 May 2022; Ref: scu.414890

The Agricultural Cattle Insurance Company v Sir John Foster Fitzgerald, Knight: 1851

In an action of debt for calls by a company formed under sta 7 and 8 Vict chapter 110 ; pleas nunquam indebitatus, and that the company was not completely registered : issues thereon : it is not indispensable that the plaintiffs should produce their certificate of registration, but the registering may be proved aliunde ; the certificate itself not being in issue. If, in such an action, the company’s deed of settlement be produced in evidence to prove the defendant a shareholder, and therefore liable under section 55 of the act, the deed is available for this purpose, though it appears that, since execution, the name of a shareholder, subscribed before that if the defendant, has been erased, and the erasure be not accounted for.

Citations:

[1851] EngR 76, (1851) 16 QB 432, (1851) 117 ER 944

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 18 May 2022; Ref: scu.296392

The Bank of Australasia v Harding: 1850

The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of thc country in which the business is carried on accordingly. – A statute authorising an unincorporated company to sue and to be sued the name of its chairman, constitutes the chairman, when so suing or so sued, an agent for the members of the company in the aflairs of the company. – The members of a company formed for the purpose of carrying on business in a colony, are not discharged from liability on judgments obtained in the colony against the chairman, by reason of their having been resident in England, not being served with process, and having received no notice of the proceedings. – Where a statute subjects the property of members for the time being of an unincorporated company, to execution upon a judgment obtained against their chairman, reserving in other respects the liabilities of parties, the remedies given against the property are in cumulation, and a member may be proceeded against by action. – A judgment in a colonial court is no estoppel; nor is it pleadable in bar in an action brought in England for the same cause.

Citations:

[1850] EngR 74, (1850) 9 CB 662, (1850) 137 ER 1052

Links:

Commonlii

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Company, Jurisdiction

Updated: 18 May 2022; Ref: scu.297421

The Bank of Australasia v Nias: 1851

By an Act of the Colonial Legislature of New South Wales, it was provided tbat a banking company should sue and be sued in the name of its chairman, arid that execution on any judgment against the oompany might be issued against the property of any member for the time being, in like manner as if such judgment had been obtairied against such member personally. In assumpsit against a member of the company on a judgment obtained in the colony against the chairman: Held, that the colonial Legislature had authority to pass the Act, and that there was nothing repugnant to the law of England, or to natural justice, in enacting that actions on contracts made by the company in the colony, instead of being brought against the shareholders individually, should be brought against the chairman whom they had appointed to represent them. That a judgment recovered in such an action, after service of process on the chairman, had the same effect beyond the territory of the colony which it would have had if the defendant had been personally served with process, and, he being a party to the record, the recovery had been personally against him. That, although in an action on a foreign or colonial judgment the judgment is examinable to a certain extent., as, for the purpose of shewing want of jurisdiction, or that defendant was not summoned, or that the judgment was fraudulently obtained, yet such judgment is not examinable upon the merits, as, for the purpose of shewing that the contract sued upon was not made, or was procured by fraud, or that the judgment was erroneous, But that a foreign or colonial judgment obtained against a co-contractor cannot be insisted on by way of merger in an action on the judgment.

Citations:

[1851] EngR 77, (1851) 16 QB 717, (1851) 117 ER 1055

Links:

Commonlii

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company

Updated: 18 May 2022; Ref: scu.296393

Green v The London General Omnibus Company (Limited): 18 Nov 1859

A corporation aggregate may be liable to an action for intentional acts of misfeasance by its servants, provided they are sufficiently connected with the scope and object of its incorporation. Therefore, in an action against a company established for conveying passengers by omnibuses in the streets of London, charging that the company by its servants wrongfully, vexatiously, and maliciously did certain acts (describing them) with a view to, and which in the result did, obstruct and annoy the plaintiff’ in the conduct of a similar trade :- Held, that, as the acts complained of were connected with the object and purpose for which the company was incorporated the company was responsible.

Citations:

[1859] EngR 999, (1859) 7 CB NS 290, (1859) 144 ER 828

Links:

Commonlii

Jurisdiction:

England and Wales

Torts – Other, Company

Updated: 18 May 2022; Ref: scu.288351

Advanced Technology Structures Ltd v Cray Technology Ltd: CA 22 Feb 1993

There should be no legal aid for a company’s nominee to bring what were, in effect, company proceedings. Parliament had deliberately excluded such assistance, and it should not be circumvented by the company assigning its rights in action to a nominee.

Citations:

Ind Summary 22-Feb-1993

Statutes:

Legal Aid Act 1974

Jurisdiction:

England and Wales

Legal Aid, Company

Updated: 17 May 2022; Ref: scu.77658

Affleck and Others v Newcastle Mind and Others: EAT 10 Mar 1999

EAT Employees of an unincorporated charitable association are employed by the management committee or other similar body within the association, and not by the members of the association at large. The employees have continuity of employment despite any change in the constitution of the committee. In practice such actions should be brought against a representative member or members of the committee. The case was remitted to the ET to hold a case management hearing to determine who should be the correct respondents.

Judges:

Morison J

Citations:

Gazette 11-Aug-1999, (1999) IRLR 405, [1999] UKEAT 537 – 98 – 1003, [1999] ICR 852

Links:

Bailii

Statutes:

Charities Act 1993 97(1), Employment Rights Act 1996 218(2)

Employment, Company, Charity

Updated: 17 May 2022; Ref: scu.77664

Re a company (No.00477 of 1986): 1986

Judges:

Hoffmann J

Citations:

[1986] BCLC 376

Cited by:

Cited – Re Haden Bill Electrical Ltd 1995
The petitioner had had in practice control of the company as chairman and though he owned only 25% of the shares. His own company loaned andpound;200,000 to the company as working capital. He complained that he had been removed as a director.
Mentioned – In the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited CA 1-May-1997
The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.264073

The Balkis Consolidated Co Ltd v Tomkinson and Others: HL 1893

Tomkinson, a stockbroker, bought shares was registered by the company and received share certificates, and then sold them. The company found that the vendor to him had previously sold the shares to someone else who had been duly registered. The transfer to Tomkinson was a fraud, and the company refused to register Tomkinson’s purchasers. Tomkinson bought other shares in the market to make good his transactions with his purchasers and sued the company for his costs. Pollock B. gave judgment in Tomkinson’s favour, as did the Court of Appeal.
Held: All the elements necessary to creat an estoppel were present.
Lord Herschell LC described the effect of Bahia:- ‘The Court held that the giving of the certificate amounted to a statement by the company, intended by them to be acted upon by the purchasers of shares in the market, that the persons certified as the holders were entitled to the shares; and that the purchasers having acted on the statement by the company, they were estopped from denying its truth and liable to pay as damages the value of the shares.’ and ‘The learned counsel for the appellants impeached these decisions, as they were entitled to do in your Lordships’ House, and contended that they ought to be overruled. After carefully considering the able arguments urged at the Bar, I have no hesitation in expressing my concurrence in the law laid down by the Court of Queen’s Bench in Re Bahia and The San Francisco Railway Co.. The reasoning of Blackburn J in pronouncing judgment in that case appears to me to be sound and in accordance with the law, and I think it would be very mischievous to cast any doubt on the authority of that case.’
Lord Macnaghten:- ‘The general principle of law relating to estoppel by representation cannot be questioned. It is, as Lord Cranworth observed in the case of Jorden v. Money, before this House, a principle of universal application, that if a person makes a false representation to another and that other acts upon that false representation the person who has made it shall not afterwards be allowed to set up that what he said was false and to assert the real truth in place of the falsehood which has so misled the other. Then, after referring to some cases on the subject, his Lordship goes on to say: ‘I think the principle may be carried much further, because I think it is not necessary that the party making the representation should know that it was false, no fraud need have been intended at the time. But if the party has unwittingly misled another you must add that he has misled another under such circumstances that he had reasonable ground for supposing that the person whom he was misleading was to act upon what he was saying.’ Now there is no doubt, I think, that in this case the company must be taken to have known that the certificate was required by Tomkinson or his firm for the purpose of being acted upon.’

Judges:

Lord Herschell LC, Lord Macnaghten, Lord Field

Citations:

[1893] AC 396

Jurisdiction:

England and Wales

Citing:

Cited – Re The Bahia and San Francisco Railway Co Ltd v Trittin and others CA 1868
Miss Trittin left her share certificates with a broker. A forged transfer together with the certificates, was lodged with and with registered by the company. The new certificates certified that the named person as registered holder. He then sold . .

Cited by:

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.

Company

Updated: 17 May 2022; Ref: scu.242172

Gradwell (PTY) v Rostra Printers Ltd: 1959

(South Africa) An offer was made of andpound;42,000 for the shares and the loan account that was then outstanding to the parent company less amounts owed to lenders on first mortgages. An analysis showed that andpound;40,258 was owed on the loan account and taking into account the higher securities the amount actually paid was less than that amount.
Held: The repayment of the loan account would help the purchaser to effect the apparent purchase but the repayment of the debt was held not to infringe the provisions of the section.

Judges:

Schriener J

Citations:

[1959] (4) SA 419

Statutes:

Companies Act 1926 86(2)

Cited by:

Cited – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
Cited – Armour Hick Northern Ltd v Whitehouse; Armour Trust Ltd ChD 1980
A vendor company was assisted by financial assistance given by a subsidiary.
Held: The use of money by a company to repay its existing indebtedness would not normally fall within the concept of the company giving financial assistance to . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 17 May 2022; Ref: scu.238728

In re Overseas Aviation Engineering(GB) Ltd: CA 1963

A charging order on land under section 35(1) of the 1956 Act obtained to enforce a judgment debt was a form of ‘execution’ for the purposes of section 325 CA 1948. Lord Denning MR: ‘The word ‘execution’ is not defined in the Act. It is, of course, a word familiar to lawyers. ‘Execution’ means, quite simply, the process for enforcing or giving effect to the judgment of the court: and it is ‘completed’ when the judgment creditor gets the money or other thing awarded to him by the judgment. That this is the meaning is seen by reference to that valuable old book Rastill Termes de la Ley, where it is stated: ‘Execution is, where Judgment is given in any Action, that the plaintiff shall recover the land, debt, or damages, as the case is; and when any Writ is awarded to put him in Possession, or to do any other thing whereby the plaintiff should the better be satisfied his debt or damages, that is called a writ of execution; and when he heath the possession of the land, or is paid the debt or damages, or heath the body of the defendant awarded to prison, then he heath execution.’ And the same meaning is to be found in Blackman v. Fysh,[1892] 3 Ch 209,217 (C.A.) when Kekewich J. said that execution means the ‘process of law for the enforcement of a judgment creditor’s right and in order to give effect to that right.’ In cases when execution was had by means of a common law writ, such as fieri facias or elegit, it was legal execution: when it was had by means of an equitable remedy, such as the appointment of a receiver, then it was equitable execution. But in either case it was ‘execution’ because it was the process for enforcing or giving effect to the judgment of the court.’
Harman LJ: ‘Now what is execution but the enforcement of a judgment or order? In my judgment, the new remedy given by section 35 is merely an alternative method of execution against the debtor’s land, replacing the old writ’.

Judges:

Lord Denning MR, Harman LJ

Citations:

[1963] I Ch 24

Statutes:

Administration of Justice Act 1956 35(1), Companies Act 1948 325

Jurisdiction:

England and Wales

Cited by:

Cited – Brenner v Revenue and Customs; In re Modern Jet Support Centre Ltd ChD 21-Jul-2005
The court was asked whether the process of distraint against goods for unpaid tax under section 61 of the 1970 Act is an ‘execution’ within section 183 of the 1986 Act which applies where a creditor has issued, but not completed, execution against . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 17 May 2022; Ref: scu.228985

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 investor) of the total amount of the warrantor’s liabilities therefor claimed.’

Judges:

Lord Justice Peter Gibson

Citations:

[2003] EWCA Civ 1368

Jurisdiction:

England and Wales

Citing:

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

Cited – Forrest and others v Glasser and Another CA 31-Jul-2006
The claimants appealed a preliminary decision against them as to whether they had correctly served a sufficient notice of their intention to make a claim in a commercial investment syndicate agreement.
Held: The claimants’ solicitor had . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 16 May 2022; Ref: scu.218851

Secretary of State for Trade and Industry v Ettinger: 1993

The court discussed the standards required of company directors. ‘Those who take advantage of limited liability must conduct their companies with due regard to the ordinary standards of commercial morality. They must also be punctilious in observing the safeguards laid down by Parliament for the benefit of others who have dealings with their companies. They must maintain proper books of account and prepare annual accounts; they must file their accounts and returns promptly; and they must fully and frankly disclose information about deficiencies in accordance with the statutory provisions.’ and ‘The seriousness with which such conduct is to be viewed is shown by the provisions of the Disqualification Act itself. The extent to which a director is responsible for any failure to comply with the statutory provisions regarding accounting records and the preparation of annual accounts is one of the matters to which the court is required to have regard in determining unfitness to be concerned in the management of a company. Those who persistently fail to discharge their statutory obligations in this respect can expect to be disqualified, for an appropriate period of time, from using limited liability as one of the tools of their trade.’

Judges:

Nicholls V-C

Citations:

[1993] BCLC 896

Statutes:

Company Directors Disqualification Act 1985

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: 16 May 2022; Ref: scu.188620

Akerhielm v De Mare: PC 1959

A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was not fraudulent having been made with an honest belief in its truth. When a party has been acquitted of fraud the decision in his favour should not be displaced except on the clearest grounds.
Lord Jenkins said: ‘their Lordships are satisfied that this is not one of those exceptional cases in which an appellate court is justified in reversing the decision of a judge at first instance when the decision under review is founded upon the judge’s opinion of the credibility of a witness formed after seeing and hearing him give his evidence. Their Lordships can hardly imagine a case in which the credibility of a witness could be more vital than a case like the present where the claim is based on deceit, and the witness in question is one of the defendants charged with deceit. Their Lordships would add that they accept, and would apply in the present case, the principle that where a defendant has been acquitted of fraud in a court of first instance the decision in his favour should not be displaced on appeal except on the clearest grounds.’ and ‘The question is not whether the defendant in any given case honestly believed the representation to be true in the sense assigned to it by the court on an objective consideration of its truth or falsity, but whether he honestly believed the representation to be true in the sense in which he understood it albeit erroneously when it was made.’

Judges:

Lord Jenkins

Citations:

[1959] AC 789, [1959] 3 All ER 485

Jurisdiction:

Commonwealth

Citing:

Cited – Glasier v Rolb 1889
A finding by a judge that a party is innocent of fraud should only reluctantly be disturbed. . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .

Cited by:

Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – The Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
Applied – Ryan and Another v Strickland Jarvis PC 29-Jun-2005
(Antigua and Barbuda) The parties disputed the effect of a joint venture of the sale of an additional range of cars through a car showroom. One party said the other had misrepresented thir contractual status, and the other said that an approach had . .
Cited – Yaqoob and Another v Royal Insurance (Uk) Ltd CA 25-May-2006
Appeal against refusal of insurance company to pay on fire loss claim. Building entered by intruders with key.
Held: ‘If after hearing the evidence the judge had been left in the position that he could not be satisfied, on the balance of . .
Cited – Crystal Palace FC (2000) Ltd v Dowie QBD 14-Jun-2007
The parties had agreed a compromise on the leaving of the defendant as manager. The club now said that the agreement had been obtained by fraudulent misrepresentation. He had been released but had said he had not had contact with another London club . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other, Company

Updated: 16 May 2022; Ref: scu.187260

Langley Holdings v Seakens: QBD 19 Oct 2000

The claimant sought recovery from one of two partners in a solicitors’ firm of solicitors of sums paid to the firm and misappropriated by the partner, who had conspired with others to offer a fraudulent investment. The claimant admitted that the promised return was incredible. The funds were received on an undertaking that they would not be used absent documentation. That undertaking was broken. It was in a solicitor’s ordinary course of business to hold money for his client. Nevertheless the defendant contended that the ‘underlying transaction’ had been ‘extraordinary’ and ‘outlandish’ and no reasonable person could have acted in it; and that the claimant could have had no genuine belief.
Held: The claimant was so dazzled by the promised profits that they had not asked whether there was a genuine investment. The recipt of the funds could not have been in the ordinary course of the business of a solicitor, and it followed that the partner was not liable.

Citations:

Unreported, 19 October 2000

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

Cited – J J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 16 May 2022; Ref: scu.186089

Gamlen Chemical Co (UK) Ltd v Rochem Ltd: CA 4 Dec 1979

Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors’ lien. The first firm appealed.
Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.
Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client’s papers to the client’s new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted ‘in order to save the client’s litigation from catastrophe’.
Goff LJ stated: ‘the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards and must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.’

Judges:

Goff and Templeman LJJ

Citations:

[1980] 1 WLR 614, [1980] 1 All ER 1049, [1983] RPC 1

Jurisdiction:

England and Wales

Citing:

Approved – Heslop v Metcalfe 1837
The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, . .
Cited – Hughes v Hughes 1958
Hodson LJ said: ‘There is no doubt that a solicitor who is discharged by his client during an action otherwise than for misconduct can retain any papers in the cause in his possession until the costs have been paid . . This rule applies, as the . .
Cited – Robins v Goldingham 1872
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs. . .
Appeal from (Dicta approved) – Gamlen Chemical Co (UK) Ltd v Rochem Ltd 1983
Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make . .

Cited by:

Cited – Ismail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
Cited – French v Carter Lemon Camerons Llp CA 3-Sep-2012
The appellant had instructed the defendant solicitors in litigation. On beginning to act in person she sought an order to require the solicitors to deliver the case papers to her. They asserted a lien on them until their account was paid. She now . .
Cited – Walsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.182182

Nant-y-glo and Blaina Ironworks Co v Grave: 1878

Shares in a company had been given by a promoter to the defendant to induce him to become a director.
Held: They belonged to the company.

Judges:

Sir James Bacon V-C

Citations:

(1878) 12 Ch D 738

Cited by:

Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 16 May 2022; Ref: scu.551506

The Queen v The Londonderry And Coleraine Railway Company: 1849

Under the Companies’ Clauses Act, 8 and 9 Vict. c. 16, s. 22, a call of money on shares is made, in point of time, when the resolution to call is passed, not when notice of the call is given to the shareholder. Therefore, by sect. 16, a shareholder cannot legally transfer his share after the passing of such resolution, without paying the call, though he has executed a deed of transfer before notice of the call was served upon him.

Citations:

[1849] EngR 89, (1849) 13 QB 998, (1849) 116 ER 1544

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 15 May 2022; Ref: scu.298394

The Queen v The Derbyshire, Staffordshire And Worcestershire Junction Railway: 31 May 1854

Under sect. 36 of The Companies Clauses Consolidation Act, 1845 (8 and! 9 Vict. c. 16), a party who has recovered judgment against a company is not precluded from assuring execution aquarist the shareholders who have riot paid up for their shares, though lands of the company have been delivered on elegit, if the proceeds of the lands be insufficient to satisfy the debt. – Therefore, in such a case, a mandamus issued commanding the Company to give the creditor inspection of the register of shareholders.

Citations:

[1854] EngR 564, (1854) 3 El and Bl 784, (1854) 118 ER 1335

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 15 May 2022; Ref: scu.293421

Bluck, On Behalf and Co v Mallalue: 15 Feb 1859

The directors of a loan company were empowered to borrow money, but clirectors who were ‘concerned in or participated in the profits of any contract with the company, vacated their offices. The chairman lent money to the company at high interest, which was afterwards lent out at a profit. Held, that this was warranted by the rules.
Discounting the bills of a director is a lending of money within a clause prohibiting loans to shareholders
Decree to compel directors in a joint stock company to take shares subscribed for by them, and which were transferable, refused.

Citations:

[1859] EngR 343, (1859) 27 Beav 398, (1859) 54 ER 156

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 15 May 2022; Ref: scu.287695

Richardson v Pitt-Stanley: CA 11 Aug 1994

The directors of a company did not become personally liable for damages, only because they had failed to insure the company for liability for personal injuries suffered as a result of the company’s activities, even though they may be criminally liable. (Sir John Megaw dissenting)
Sir John Megaw said: ‘With great respect, I find it difficult to believe that the parliamentary draftsman would have intended to make provision that there should be no civil right or remedy by using the formula of section 1 of the Employers’ Liability (Compulsory Insurance) Act 1969, ‘shall insure’, followed by section 5 ‘shall be guilty of an offence’; as contrasted with the formula of declaring an act or omission to be unlawful and then separately providing a criminal penalty for the breach.’

Judges:

Russell and Stuart-Smith LJJ, Sir John Megaw

Citations:

Independent 06-Sep-1994, Times 11-Aug-1994, [1995] QB 123

Statutes:

Employers’ Liability (Compulsory Insurance) Act 1969 1(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Campbell v Peter Gordon Joiners Ltd and Forsyth, The Liquidator Thereof and Gordon SCS 3-Feb-2015
(Extra Division – Inner House) The pursuer was injured working as an apprentice for a company operated by its sole director, the second defender. Though he was an apprentice joiner, the company’s insurance excluded (in breach of the 1969 Act) injury . .
Cited – Campbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
Lists of cited by and citing cases may be incomplete.

Company, Personal Injury

Updated: 15 May 2022; Ref: scu.88776

Conti v Ueberseebank Ag: IHCS 15 Mar 2000

A former director of a company could apply to have it restored to the register of companies even though he had played a significant part in the decisions to wind the company up in the first place. The time for testing whether he had an appropriate grievance which might found an application was at the time of the application being made and not at any earlier time.

Citations:

Times 15-Mar-2000

Statutes:

Companies Act 1985 653

Citing:

Appeal from – Fabrizio Conti v Ueberseebank A G OHCS 2-Oct-1998
(Scotland) A company director and shareholder who had agreed with board’s decision to apply for company to be wound up could not later apply to set aside that application on the grounds that he was a person ‘aggrieved’ by that decision. . .

Cited by:

Appealed to – Fabrizio Conti v Ueberseebank A G OHCS 2-Oct-1998
(Scotland) A company director and shareholder who had agreed with board’s decision to apply for company to be wound up could not later apply to set aside that application on the grounds that he was a person ‘aggrieved’ by that decision. . .
Lists of cited by and citing cases may be incomplete.

Company, Scotland

Updated: 15 May 2022; Ref: scu.79468

Re Thorn EMI: 1989

Judges:

Harman J

Citations:

[1989] BCLC 612

Jurisdiction:

England and Wales

Cited by:

Cited – Winpar Holdings Ltd v Ransomes Plc CA 1-Jul-1999
The company had been given permission to cancel a share premium account. Changes in circumstances brought the matter back for reconsideration. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 13 May 2022; Ref: scu.195961

Re Chatterley-Whitfield Collieries: 1948

The colliery had been nationalised at a time of very low interest rates. The court discussed the ‘reasonable expectations’ of preferential shareholders.

Judges:

Asquith LJ

Citations:

[1948] 2 All ER 593

Jurisdiction:

England and Wales

Cited by:

Cited – Winpar Holdings Ltd v Ransomes Plc CA 1-Jul-1999
The company had been given permission to cancel a share premium account. Changes in circumstances brought the matter back for reconsideration. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 13 May 2022; Ref: scu.195956

Smith, Stone and Knight Limited v Birmingham: 1939

Implied Agency between Parent and Subsidiary

An application was made to set aside a preliminary determination by an arbitrator. The parties disputed the compensation payable by the respondent for the acquisition of land owned by Smith Stone and held by Birmingham Waste as its tenant on a yearly tenancy. Birmingham Waste was a wholly owned subsidiary of Smith Stone and was said in the Smith Stone claim to carry on business as a separate department and agent for Smith Stone. As a yearly tenant, Birmingham Waste, however, had no status to claim compensation. The question was whether, as a matter of law, the parent company could claim compensation for disturbance to the business carried on at the acquired premises. The arbitrator’s award answered this in the negative. Smith Stone applied to set the award aside on the ground of technical misconduct.
Held: The parent company was entitled to compensation in respect of a business carried on by a subsidiary on the basis that the subsidiary was in reality carrying it on on behalf of the parent company.
An implied agency existed between the parent and subsidiary companies so that the parent was considered to own the business carried on by the subsidiary and could claim compensation for disturbance caused to the subsidiary’s business by the local council. In determining whether a subsidiary was an implied agent of the parent, Atkinson J examined whether, on the facts as found by the arbitrator and after rejecting certain conclusions of fact which were unsupported by evidence, Smith Stone was in fact the real owner of the business and was therefore entitled to compensation for its disturbance.
The rule to protect the fact of separate corporate identities was circumvented because the subsidiary was the agent, employee or tool of the parent. The subsidiary company was operating a business on behalf of its parent company because its profits were treated entirely as those of the parent company’s; it had no staff and the persons conducting the business were appointed by the parent company, and it did not govern the business or decide how much capital should be embarked on it. In those circumstances, the court was able to infer that the company was merely the agent or nominee of the parent company.
Atkinson J formulated six relevant criteria, namely:
‘(a) Were the profits treated as profits of the parent?
(b) Were the persons conducting the business appointed by the parent?
(c) Was the parent the head and brain of the trading venture?
(d) Did the parent govern the venture, decide what should be done and what capital should be embarked on the venture?
(e) Did the parent make the profits by its skill and direction?
(f) Was the parent in effectual and constant control?’

Judges:

Atkinson J

Citations:

[1939] 4 All ER 116

Jurisdiction:

England and Wales

Cited by:

Cited – Reed v Marriott (Solicitors Regulation Authority) Admn 13-May-2009
The appellant solicitor had entered into an arrangement with a company to receive referrals of personal injury cases. She said that the agreements were deliberately devised to hide the fact that unlawful referral fees were to be paid, by requiring . .
Lists of cited by and citing cases may be incomplete.

Company, Agency

Updated: 11 May 2022; Ref: scu.472101

Dubai Aluminium Company Limited v Salaam and others: CA 7 Apr 2000

The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who prepares documents for use in a fraudulent scheme, and gives supporting advice, unbeknown to his partners, is acting outside the ordinary course of business, and his partners are not vicariously liable for his acts.

Judges:

Evans, Aldous LJJ, Turner J

Citations:

Times 21-Apr-2000, [2000] 3 WLR 910, [2000] EWCA Civ 118, [2000] 2 Lloyd’s Rep 168, [2001] QB 113, [2000] PNLR 578, [2000] Lloyd’s Rep PN 497

Links:

Bailii

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Citing:

Appeal from – Dubai Aluminium Company Ltd v Salaam and Others QBD 17-Jul-1998
A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later . .
See Also – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

Appeal from – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Vicarious Liability

Updated: 11 May 2022; Ref: scu.147151

Regina v Darlington Borough Council Ex Association of Darlington Tax Owners and Another (No 2): QBD 14 Apr 1994

An unincorporated association although not a legal person with the capacity to sue in judicial review, may still suffer an order for costs.

Citations:

Times 14-Apr-1994

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association QBD 13-Jan-1994
The court should distinguish the concepts of locus standi and capacity when considering applications for judicial review. An unincorporated association is not a legal person and may not seek Judicial Review. . .
Lists of cited by and citing cases may be incomplete.

Costs, Company

Updated: 11 May 2022; Ref: scu.86506

Keene v Martin: CA 11 Nov 1999

The section allowed the court to decide both to allow the rectification of a company’s registers and also to decide the true ownership of shares. Although a summary procedure was not appropriate for the settlement of cases involving substantially disputed issues of fact, the over-riding purpose of the court rules should be allowed to enable the court to make directions appropriate for the deciding of the issues in the case.

Citations:

Gazette 17-Nov-1999, Times 11-Nov-1999

Statutes:

Companies Act 1985 395(1) 395(3)

Jurisdiction:

England and Wales

Company

Updated: 10 May 2022; Ref: scu.82698

In Re Surrey Leisure Ltd; Official Receiver v Keam and Another: CA 28 Jul 1999

An applicant for a company director disqualification order was permitted to name more than one company as the lead company in its application. The Interpretation Act operated to resolve any ambiguity or lack of clarity in favour of an interpretation allowing multiple lead companies. The notice of intention to apply need not either mention all intended lead companies.

Citations:

Times 28-Jul-1999

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Surrey Leisure Ltd ChD 25-Jan-1999
In company director disqualification proceedings the person applying for the order could nominate more than one lead company in the proceedings, but he did not have a duty to name all the lead companies. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 May 2022; Ref: scu.82211

In Re Blenheim Leisure (Restaurants) Ltd (No 2): ChD 26 Oct 1999

On an application to restore a company to the register, the court has the power to impose conditions, whether as pre-conditions or whether by accepting undertakings as to the circumstances for restoral. Such conditions however must be intended primarily for the benefit of either the company or of the Registrar.

Citations:

Gazette 20-Oct-1999, Times 26-Oct-1999

Statutes:

Companies Act 1985 653

Jurisdiction:

England and Wales

Company

Updated: 10 May 2022; Ref: scu.81753

England v Smith: CA 8 Dec 1999

A liquidator of an Australian company sought damages from a ‘world-wide’ company Arthur Andersen’ and sought in particular to examine a partner in the UK. Examination was at first refused since an English court would not make a similar order. That erred in taking a restrictive view of English insolvency practice. ‘Insolvency Law’ did not exclude other considerations such as the need for comity as shown in the section. Australian law applied to the examination of an accountant connected with insolvent Australian company.

Citations:

Gazette 08-Dec-1999, [2001] Ch 419

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Cited by:

Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Company, International

Updated: 10 May 2022; Ref: scu.80333

Re Rocksteady Services Ltd: 2001

Director disqualification proceedings will not be struck out simply because there has been a delay in the course of the preparations for trial or even in the trial itself.

Citations:

[2001] 1 BCLC 84

Jurisdiction:

England and Wales

Cited by:

Cited – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 10 May 2022; Ref: scu.268065

Re Geers Gross plc: CA 1988

Nourse LJ said: ‘the clear purpose of [Pt VI of the 1985 Act] is to give a public company, and ultimately the public at large, a prima facie unqualified right to know who are the real owners of its voting shares.’

Judges:

Nourse LJ

Citations:

[1988] 1 All ER 224, [1988] BCLC 140

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – In re TR Technology Investment Trust Plc ChD 1988
The court was asked whether the limition on the circumstances in which the court could remove restrictions imposed under section 794, applied to a merely interim order.
Held: It did not. Hoffmann J said of the powers t demand information given . .
Cited – JKX Oil and Gas Plc and Others v Eclairs Group Ltd CA 13-May-2014
The court was asked as to important issues on the validity and constitutionality of restrictions imposed by the directors pursuant to Part 22 of the 2006 Act and the company’s Articles of Association, including the purported disenfranchisement of . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 May 2022; Ref: scu.595476

Anglo-Universal Bank v Baragnon: CA 1881

If it was shown that the power to make calls was being exercised for the purpose of disqualifying hostile shareholders at a general meeting, that would be an improper exercise of the directors’ powers.

Judges:

Sir George Jessel MR

Citations:

(1881) 45 LT 362

Jurisdiction:

England and Wales

Cited by:

Cited – Eclairs 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.

Company

Updated: 09 May 2022; Ref: scu.595480

Cannon v Trask: 1875

The Court was asked as to the use of the directors’ powers to fix a time for the general meeting,
Held: It was improper to fix a general meeting at a time when hostile shareholders were known to be unable to attend.

Judges:

Sir James Bacon VC

Citations:

(1875) LR 20 Eq 669

Jurisdiction:

England and Wales

Cited by:

Cited – Eclairs 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.

Company

Updated: 09 May 2022; Ref: scu.595479

Commercial Banking Co of Sydney Ltd v Mann: PC 1961

The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a ‘trust account’ in the partnership name with the Australian and New Zealand Bank in Sydney (‘ANZ’). Under the partnership agreement, all assets belonged to Mann, but cheques might be drawn on the partnership bank account by either. Mann gave the necessary authority to ANZ. Richardson used that authority to draw cheques, inserting on each after the printed word ‘Pay’, the words ‘Bank cheque favour H. Ward’ or ‘Bank cheque H. Ward;’. He also filed application forms for bank cheques in favour of H. Ward to a like amount, purporting to sign them on behalf of the firm. He took the documents to ANZ, which in each case debited the firm’s account and issued a bank draft of an equal amount in the form ‘Pay H. Ward or bearer.’ He took the cheques to the appellant bank, and cashed them over the counter. The bank paid the cheques. He was fraudulent throughout; Ward was not a client of the partnership, nor had any client authorised the payment to him of any money held in the trust account. Mann sued the appellant bank for conversion of the bank cheques, or alternatively to recover the sums received by it from ANZ bank as money had and received to his use. He succeeded before the trial judge, whose decision was affirmed by the Court of Appeal of New South Wales.
Held: The bank’s appeal succeeded. Mann never obtained any title to the cheques, and he could not obtain title by ratifying the conduct of Richardson in obtaining the cheques from ANZ bank, without at the same time ratifying the dealings in the cheques by Ward and the appellant bank. Mann’s claim for damages for conversion failed, and that his alternative claim for money had and received also failed. Where a partner in a firm wrongfully draws a cheque on the partnership account, the proceeds of the cheque are legally his.
Viscount Simonds said: ‘It is important to distinguish between what was Richardson’s authority in relation on the one hand to the A.N.Z. bank and on the other to Mann. No question arises in these proceedings between Mann and the A.N.Z. bank. It is clear that Mann could not as between himself and the bank question Richardson’s authority to draw cheques on the trust account. The position as between Mann and Richardson was different. Richardson had no authority, express or implied, from Mann either to draw cheques on the trust account or to obtain bank cheques in exchange for them except for the proper purposes of the partnership. If he exceeded those purposes, his act was unauthorised and open to challenge by Mann. It is in these circumstances that the question must be asked whether, as the judge held, the bank cheques were throughout the property of Mann. It is irrelevant to this question what was the relation between Richardson and Ward and whether the latter gave any consideration for the bank cheques that he received and at what stage Mann learned of the fraud that had been practised upon him. The proposition upon which the respondent founds his claim is simple enough: Richardson was his partner and in that capacity was able to draw upon the trust account and so to obtain from the bank its promissory notes: therefore the notes were the property of the partnership and belonged to Mann, and Richardson could not give a better title to a third party than he himself had.’

Judges:

Viscount Simonds, Lord Reid, Lord Radcliffe, Lord Tucker and Lord Morris of Borth-y-Gest

Citations:

[1961] AC 1, [1960] 3 All ER 482

Jurisdiction:

England and Wales

Citing:

Applied – Union Bank of Australia Ltd v McClintock PC 1922
Where a partner obtains money by drawing on a partnership bank account without authority, he alone and not the partnership obtains legal title to the money so obtained. . .

Cited by:

Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company, Banking, Torts – Other

Updated: 07 May 2022; Ref: scu.259437

Wilson v Dunbar Bank plc: OHCS 1988

An agreement to the insertion of book values in a balance sheet prepared during the continuance of the partnership did not bind the deceased partner if that balance sheet fell to be used for the purpose of the ascertainment his share in the partnership at his death.

Judges:

Lord Mayfield

Citations:

1988 SLT 93

Jurisdiction:

Scotland

Cited by:

Unpersuasive – 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 May 2022; Ref: scu.238868

Moriarty v Regent’s Garage and Engineering Co Ltd: CA 2 Jan 1921

Whilst the point was obiter in this case: ‘ . . it seems to me that there is no decision binding on the Court of Appeal as to whether directors’ fees are salary within the Apportionment Act in the case where the agreement . . is simply for payment of so much per year. I do not express any opinion one way or another. It seems to me a very arguable point, and there does not seem to me at present anything to prevent that question being considered in the Court of Appeal when it arises.’

Judges:

Scrutton LJ

Citations:

[1921] 2 KB 766

Statutes:

Apportionment Act 1870

Jurisdiction:

England and Wales

Citing:

Appeal from – 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:

Appealed to – 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 – 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

Updated: 06 May 2022; Ref: scu.215872

Attorney-General’s Reference (No 1 of 1988): CACD 19 Oct 1988

The defendant received price-sensitive information. The Attorney-General appealed his acquittal, the judge having directed the jury that in order to have ‘obtained’ information within the subsection, he must have carried out some act, that he had expended some effort or acquired the information on purpose.
Held: The meaning was wider than as stated by the judge, and included any individual who had obtained information from another. No more was required than to receive the information.

Citations:

Times 19-Oct-1988

Statutes:

Company Securities (Insider Dealing) Act 1985 1(3)

Jurisdiction:

England and Wales

Citing:

Appealed to – Attorney-General’s Reference (No 1 of 1988) HL 1989
The defendant received price-sensitive information. He was acquitted of ‘obtaining’ the information, the judge finding that he had done nothing positive to acquire it. On appeal the court held that no such act was required,
Held: Nothing . .

Cited by:

Appeal from – Attorney-General’s Reference (No 1 of 1988) HL 1989
The defendant received price-sensitive information. He was acquitted of ‘obtaining’ the information, the judge finding that he had done nothing positive to acquire it. On appeal the court held that no such act was required,
Held: Nothing . .
Lists of cited by and citing cases may be incomplete.

Crime, Company

Updated: 06 May 2022; Ref: scu.198911

Mills 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 associated with too rigorous an application of the public law test to the decisions of directors: ‘it may be thought that a question arises whether there must be an entire exclusion of all reasons, motives or aims on the part of the directors, and all of them, which are not relevant to the purpose of a particular power. When the law makes the object, view or purpose of a man, or of a body of men, the test of the validity of their acts, it necessarily opens up the possibility of an almost infinite analysis of the fears and desires, proximate and remote, which, in truth, form the compound motives usually animating human conduct. But logically possible as such an analysis may seem, it would be impracticable to adopt it as a means of determining the validity of the resolutions arrived at by a body of directors, resolutions which otherwise are ostensibly within their powers. The application of the general equitable principle to the acts of directors managing the affairs of a company cannot be as nice as it is in the case of a trustee exercising a special power of appointment. It must, as it seems to me, take the substantial object the accomplishment of which formed the real ground of the board’s action. If this is within the scope of the power, then the power has been validly exercised.’

Judges:

Dixon J, Latham CJ

Citations:

(1938) 60 CLR 150, [1938] HCA 4

Links:

Austlii

Jurisdiction:

Australia

Citing:

Cited – Hindle v John Cotton Ltd HL 3-Jul-1919
Viscount Finlay said: ‘Where the question is one of abuse of powers, the state of mind of those who acted, and the motive on which they acted, are all important, and you may go into the question of what their intention was, collecting from the . .

Cited by:

Cited – Cayne 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 . .
Cited – 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 . .
Cited – Eclairs 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.

Company

Updated: 06 May 2022; Ref: scu.196955

re Queen’s Moat House Plc: ChD 5 Dec 2001

The interests of justice are unlikely to require a second investigation of facts, which have already been the subject matter of an exhaustive examination.

Judges:

Mr Justice Pumfrey

Citations:

Unreported, 5 December 2001

Jurisdiction:

England and Wales

Cited by:

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

Company, Estoppel

Updated: 06 May 2022; Ref: scu.186021

Re Jaymar Management Ltd: ChD 1990

The 10 day notice period before commencing proceedings had to be calculated exclusive of the day on which the notice was given and the day on which the proceedings were issued.

Judges:

Harman J

Citations:

[1990] BCC 303

Statutes:

Company Directors Disqualification Act 1986 16(1)

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 . .
Cited – Re Cedac Ltd CA 1991
The Secretary of State’s notice of intention to bring disqualification proceedings was served and the proceedings begun 10 days later just inside the 2 year limitation period specified by s 7(2) of the Act. Both parties believed the 10 day notice . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 May 2022; Ref: scu.185780

Re Cubelock Ltd: ChD 2001

The procedures for disqualifying directors should not become hedged about with particular rules allowing directors to escape disqualification on small and technical points.

Citations:

[2001] BCC 523

Statutes:

Company Directors Disqualification Act 1986

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: 06 May 2022; Ref: scu.185778

Re RAC Motoring Services Ltd: ChD 8 Jul 1998

The court approved a scheme of arrangement allowing the RAC to sell off its roadside car resue service and to amend its constitution to allow distribution of the assets to members of the company. The effect of the scheme was that the members ceased to be members of RACL. A new company named RAC Acquisitions became the sole member of RACL. RAC Acquisitions itself became a subsidiary of RAC Holdings Limited ( RACH). One share of andpound;1 each in RACH was allotted to each person who was a member of RACL at the close of business on 8 July 1998. That share was later divided into 2 shares of 50p each. In addition, each of those former members of RACL became a member of New Club Company Limited, to which the entire share capital of a company called Club Acquisition Company Limited (CACL) was transferred. CACL had, while it was a subsidiary of RACL, acquired all the assets of RACL. The New Club Company, which became and remains the ultimate proprietor of the Club, was later re-named ‘The Royal Automobile Club Limited.’ RACL was re-named ‘RAC Limited’ and was subsequently re-registered as an unlimited company with a share capital, whereupon its name became ‘RAC.’

Judges:

Neuberger J

Citations:

[2000] 1 BCLC 307

Statutes:

Companies Act 1985 485

Jurisdiction:

England and Wales

Cited by:

Cited – Bruce Peskin; Kevin Milner v John Anderson and Others CA 14-Dec-2000
The Royal Automobile Club (RAC) had been demutualised. The claimants were former members who sought damages from former directors because they had received no benefit. They had ceased to be members before the re-organisation and claimed they should . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 06 May 2022; Ref: scu.185790

Betjemann v Betjemann: CA 1895

A father and his two sons had carried on the business as partners from 1856 to 1886; the father died in 1886 but the sons continued the business until 1893 when one of the sons died. The deceased son’s executor brought an action against the surviving partner for an account of the partnership dealings from 1886. The surviving partner claimed that the accounts of the old partnership should be taken from 1856.
Held: The surviving son was entitled to an order for the accounts to be taken against the deceased son’s executor with effect from 1856, on the basis that the accounts of the original firm had been carried on into the new firm without interruption or settlement.
Rigby LJ said: ‘What is the duty of a man to inquire? To whom does he owe that duty? Certainly not to the person who had committed the concealed fraud.’

Judges:

Rigby, Lindley LJJ

Citations:

[1895] 2 Ch 474

Jurisdiction:

England and Wales

Cited by:

Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 06 May 2022; Ref: scu.588902

I J L, G M R, and A K P v United Kingdom (Application Nos 29522/95, 30056/96, and 30574/96): ECFI 13 Oct 2000

The obtaining by compulsion of statements in Companies investigations which were later used in evidence in criminal trials was a breach of the defendant’s human right to a fair trial by enforced self-incrimination. However there was no evidence in this case that there had been any collusion to seek to take advantage of the procedure in planning the timing of the criminal proceedings, and given the complex nature of the matters in issue, the delay was not so unreasonable as to amount to an infringement.

Citations:

Times 13-Oct-2000

Jurisdiction:

European

Criminal Evidence, Company, Human Rights

Updated: 04 May 2022; Ref: scu.81586

Conway v Petronius Clothing Limited: 1978

The court considered, inter alia, the right of a director to inspect his company’s records. The applicable statutory provision as to a company’s financial records simply laid down a criminal sanction and conferred no civil right enforceable by injunction. All serving directors have the right to inspect the company’s records, minutes and accounts, and if desired they may have appropriate expert assistance.

Judges:

Slade J

Citations:

[1978] 1 WLR 72, [1978] 1 All ER 185, (1978) 122 SJ 15

Jurisdiction:

England and Wales

Citing:

Cited – Burn v London South West Coal Co 1890
. .

Cited by:

Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 May 2022; Ref: scu.573399

Corbett v Corbett: ChD 1998

Judge Howarth observed: ‘I am well aware of the fact in s.459 cases they are in every bit like an acrimonious divorce case between people whose marriages fail. They are one of the instances in life where frankly bloody-mindedness takes over and people are capable at least of acting in a way of doing the other side down and getting pleasure from doing the other side rather than by acting in accordance with strict, rational forms of behaviour for their own long-term interests and certainly the long-term interests of the company.’

Judges:

Judge Howarth

Citations:

[1998] BCC 93

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 May 2022; Ref: scu.573401

Burn v London South West Coal Co: 1890

Citations:

[1890] 7 TLR 118

Jurisdiction:

England and Wales

Cited by:

Cited – Conway v Petronius Clothing Limited 1978
The court considered, inter alia, the right of a director to inspect his company’s records. The applicable statutory provision as to a company’s financial records simply laid down a criminal sanction and conferred no civil right enforceable by . .
Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 May 2022; Ref: scu.573400