Tag: Company

Dunne v English: CA 1874

A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a declaration . . that the Plaintiff was entitled to share equally with the Defendant in the profits . . and that the Defendant was bound to make over to the Plaintiff one half of the profits . .’ Because of the importance which equity attaches to fiduciary duties, ‘informed consent’ to a fiduciary acting for two parties is only effective if it is given after ‘full disclosure’.
Sir George Jessel MR said of a partner: ‘The Defendant was not only in law the agent of the partnership to sell (being himself a partner, and every partner being an agent of the partnership), but he was in fact the agent who had been engaged in negotiating the sale.’

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 524

Jurisdiction:

England and Wales

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 . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Equity, Agency, Company

Updated: 04 May 2022; Ref: scu.551499

New Zealand Forest Products Finance NV v Commissioner of Inland Revenue: 1995

(New Zealand) The taxpayer company was established in the Netherlands Antilles as the subsidiary of a New Zealand parent company. It was a vehicle company whose purpose was to raise borrowings on the Eurobond market and to lend the money on to the New Zealand parent for use in its business or in the businesses of the group. The Netherlands Antilles subsidiary of the ABN group was engaged to act as manager and bookkeeper of the company and subsequently was appointed a director of it. The ABN subsidiary provided a registered office, and ensured compliance with Netherlands Antilles laws and with the articles of association of the company. It also attended to the day to day management of the company. Proposals for bond issues originated with the parent company in New Zealand, but were actually carried into effect by the Netherlands Antilles subsidiary, which had a local board of directors. For some of the time one of the directors was a New Zealander who was also a director of the parent company.
Held: [‘the objector’ means the Netherlands Antilles subsidiary] ‘All the objector’s decisions in respect of issues were taken at meetings outside New Zealand. The issues could not proceed without those decisions. Plainly those decisions of policy in respect of the borrowing were first undertaken by those responsible for NZFP [the parent company], with the reasonable expectation that they would find favour with the directors of the objector, particularly when in the time of Mr Wylie he was a director of both boards and other Australasian directors were closely associated with NZFP.
It is also clear upon the evidence, however, that the decisions of the directors of the objector were those of the objectors [sic] independently. . .
Applying the De Beers test, it is clear the central management and control of the objector was at all times outside New Zealand. All decisions taken by its directors were taken outside New Zealand, as were its shareholders’ meetings and its essential management functions, which took place in Curacao. The Commissioner has argued that the true centre of management and control was Auckland and that the board of the objector merely rubber stamped NZFP decisions. As already indicated, that ignores both the legal and the factual position. . . The Commissioner’s position confuses NZFC’s policy and influence with its powers. . . [I]t was not in the interests of NZFP that the directors of the objector should act as pawns or rubber stamps in the way submitted by the Commissioner and they did not do so. . . The control and management of the objector was in the hands of its directors and, as already indicated, that was at no time exercised in New Zealand.’

Judges:

Doogue J

Citations:

(1995) 17 NZTC 12,073

Jurisdiction:

England and Wales

Cited by:

Cited – Unit Construction Co Ltd v Bullock HL 30-Nov-1959
The UK parent company owned subsidiaries incorporated in East Africa and carried on trading activities there. The managing director of the parent company concluded that ‘the situation of the African subsidiaries was becoming so serious that it was . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 May 2022; Ref: scu.224813

Income Tax Commissioners for City of London v Gibbs: HL 1942

Lord Macmillan considered the construction of the word ‘person’ in the context of a partnership under Scots law: ‘The word ‘person’ is in the singular, but it includes the plural and also any body of persons corporate or unincorporate: Interpretation Act, 1889, s.1, sub-s.1(b), and s,19. In considering whether a partnership or a group of persons associated in partnership constitutes ‘a person charged’ within the meaning of the rule, I think it right to lay aside any preconceptions derived either from the law of England or from the law of Scotland as to the technical legal nature of a partnership. In Scotland a firm is ‘a legal person distinct from the partners of whom it is ‘composed’: Partnership Act 1890, s.4, sub-s.2, but this is not so under English law. For the present purpose this distinction should, in my opinion, be disregarded . . The important thing to ascertain is the meaning of the word ‘person’ in the vocabulary of the Income Tax Acts. The word constantly occurs throughout the Acts, and I think that it is most generally used to denote what may be termed an entity of assessment, i.e., the possessor or recipient of an income which the Acts require to be separately assessed for tax purposes . . Having regard to the special vocabulary of the income tax legislation, I find no difficulty in interpreting the words ‘ person charged’ in r.9 to include the case of several persons associated together in partnership for the purpose of carrying on a trade in common whose profits are by the Acts made the subject of separate assessment and separate charge. ‘

Judges:

Lord Macmillan

Citations:

[1942] AC 402

Jurisdiction:

Scotland

Cited by:

Cited – National Grid Gas Plc, Regina (on the Application of) v The Environment Agency Admn 17-May-2006
The claimant sought a judicial review of the decision to hold them responsible for necessary works of remediation. They were statutory successors to British Gas Corporation.
Held: The legislation clearly attempted to hold the contaminator . .
Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .
Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 May 2022; Ref: scu.242435

Ali v Top Marques Car Rental Ltd and Others: ChD 3 Feb 2006

The claimant had sought an extension of time for registration of his charge over the company’s assets. The judge granted the request but delayed its implementation for 14 days to allow the company or other creditors to object. Companies House practice was to register the charge upon receipt of such an order, but not to issue a certificate until the delay period had expired. By mistake it issued the certificate immediately.
Held: The issue of the certificate had been contrary to the practice and expectations of all involved. Nevertheless, the issue of the certicate was conclusive and binding, and the terms of the original order were no longer operative, and the court had no jurisdiction to intervene.

Citations:

Times 10-Feb-2006

Statutes:

Companies Act 1985 404(1)

Jurisdiction:

England and Wales

Citing:

Cited – In re Charles and Co Ltd 1935
A court granting an order extending the period for registration of a company charge may allow a further delay before registration to allow for objections from other creditors. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 May 2022; Ref: scu.238394

Dale v Hamilton: 1846

An oral partnership agreement mat be valid despite the partnership owning land.

Citations:

(1846) 5 Hare 369

Jurisdiction:

England and Wales

Cited by:

Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
Lists of cited by and citing cases may be incomplete.

Company, Land

Updated: 30 April 2022; Ref: scu.219437

Phoenix Office Supplies Limited, Parish, Ogden v Larvin: CA 12 Dec 2002

The parties were members of a company which operated as a quasi-partnership. In discussions it had been agreed that the one third partners shuld be able to require the others to purchase his interest, but no contract was signed. On the claimant wanting to leave, the others appealed an order requiring them to purchase his share at full value.
Held: The Act was intended to protect shareholders from unfair treatment at the hands of other members, but it was not to be extended to require, in effect, a no-fault divorce procedure. The appeal was allowed.

Judges:

Lord Justice Auld, Lord Justice Clarke, Lord Justice Jonathon Parker

Citations:

Gazette 06-Feb-2003

Statutes:

Companies Act 1985 495

Jurisdiction:

England and Wales

Company

Updated: 28 April 2022; Ref: scu.178447

Eastgate Group Ltd v Lindsey Morden Group Inc, and Smith and Williamson (a Firm): CA 10 Oct 2001

The defendant faced a claim for breach of warranties given by vendors in a company share sale agreement. The sought a contribution from the purchasers accountants who had prepared figures upon which the purchase decision was based. The defendants’ liability was strictly in contract, but the contribution they sought arose in negligence. The Act formulated the liability widely. However the damage arising from one claim, was not the same as the other, and no mutual discharge would apply. The request had been refused, and the defendant appealed.
Held: The judge had erred in holding that there would be no mutual discharge, and therefore the claim was capable of being subject to a claim for contribution. The fact that different sums might be payable did not mean that the claims were different. It was not correct to try to judge the issue of whether it would be just and equitable to make an order at an interlocutory stage.

Judges:

Potter LJ and Longmore LJ

Citations:

Gazette 08-Nov-2001, [2001] EWCA Civ 1446, [2002] 1 WLR 642

Statutes:

Civil Liability (Contributions) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – The Carnival 1994
. .
Cited – Friends’ Provident Life Office v Hillier, Parker May and Rowden CA 1997
Friends Provident had participated in a development project on terms which required it to pay its share of the development costs as it proceeded. It employed Hillier Parker, a firm of surveyors, to check demands made from time to time for payment of . .
Cited – Howkins and Harrison (A Firm) v Tyler and Another CA 3-Aug-2000
Having paid out andpound;400,000 to a lender as damages for a negligent survey valuation after default in repayments by the defendant, the claimant also sought to recover the payment from the defendant under the Act. The application to stay the . .

Cited by:

Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence, Damages

Updated: 28 April 2022; Ref: scu.166542

Thomas and an v Maxwell (Secretary of State for Trade and Industry intervening): ChD 8 Apr 1999

A party giving evidence to inspectors under the Companies Act was not in contempt for refusing to give a confidentiality undertaking. There is no power to require one, but the information was protectable as confidential in any event.

Citations:

Gazette 08-Apr-1999

Statutes:

Companies Act 1985 436

Jurisdiction:

England and Wales

Company

Updated: 28 April 2022; Ref: scu.89856

National Westminster Bank Plc and Another and Barclays Bank Plc and Another v Inland Revenue Commissioners: ChD 6 Aug 1993

A business expansion tax plan was valid if it was issued before the Income and Corporation Taxes Act. Shares were issued on the sending of the allotment letter, not when the shares came to be registered in the company’s books.

Citations:

Ind Summary 30-Aug-1993, Times 06-Aug-1993

Statutes:

Income and Corporation Taxes Act 1988 289 299A

Jurisdiction:

England and Wales

Citing:

Appealed to – National Westminster Bank Plc and Another v Inland Revenue Commissioners CA 10-Jan-1994
Shares in Business Expansion Scheme were not to be treated as issued until they were entered in the company’s share register. The scheme was ineffective being a scheme to avoid Income Tax by financial manipulation. . .

Cited by:

Appeal from – National Westminster Bank Plc and Another v Inland Revenue Commissioners CA 10-Jan-1994
Shares in Business Expansion Scheme were not to be treated as issued until they were entered in the company’s share register. The scheme was ineffective being a scheme to avoid Income Tax by financial manipulation. . .
At First Instance – National Westminster Bank Plc and Another v Inland Revenue Commissioners HL 24-Jun-1994
Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Company

Updated: 28 April 2022; Ref: scu.84210

Macpherson and Another v European Strategic Bureau Ltd: ChD 1 Mar 1999

There had been no unlawful distribution under a shareholders’ agreement where quasi-partners were given a share of future earnings for contracts initiated by them before retirement in proportion to previous stake in the company. A director ought to be relieved against a failure to declare an interest in a contract where: ‘No amount of formal disclosure by each to the other would have increased the other’s relevant knowledge.’

Judges:

Ferris J

Citations:

Times 01-Mar-1999, [1999] 2 BCLC 203

Statutes:

Companies Act 1985 263(1)

Jurisdiction:

England and Wales

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

Company

Updated: 28 April 2022; Ref: scu.83290

Attorney General v Mersey Railway Co: HL 9 Jul 1907

A railway company started a service of omnibuses from their station to and through a town. The omnibuses ran in connection with trains, but carried ordinary passengers for any distances. They had no special powers in their Act.
Held that the omnibus business as carried on by the company was not incidental to the undertaking of the railway, and accordingly was ultra vires.

Judges:

Lord Chancellor (Loreburn), Lord Ashbourne, Lord Macnaghten, Lord James of Hereford, and Lord Atkinson

Citations:

[1907] UKHL 631, 45 SLR 631

Links:

Bailii

Jurisdiction:

England and Wales

Transport, Company

Updated: 27 April 2022; Ref: scu.622299

Clifford v Timms: HL 21 Nov 1907

A partnership contract between A and B, two dentists, provided that if either should ‘be guilty of professional misconduct or any act which is calculated to bring discredit upon or injure the other partner or the partnership business,’ the other should have the right to terminate the partnership. A joined with other persons in forming, and became a director and shareholder in, a company called the American Dental Institute, Limited. This company issued large numbers of advertisements, in which they praised their own work and products in the most extravagant terms, and at the same time decried those of rival practitioners in general, against whom they also made charges of moral misconduct.
Held that A’s conduct was such as to entitle B to terminate the partnership under the clause above narrated.

Judges:

Lord Chancellor (Loreburn), The Earl of Halsbury, Lords Macnaghten and Atkinson

Citations:

[1907] UKHL 966, 45 SLR 966

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 27 April 2022; Ref: scu.622314

Poole and Others v National Bank of China: HL 28 May 1907

Wherever a company has passed a special resolution for reducing its capital the Court has jurisdiction to entertain a petition at the instance of the company, for an order confirming such reduction. There are no other conditions-precedent to such jurisdiction, and, in particular, it need not be proved that the capital which is to be cancelled is lost or unrepresented by available assets. The petition will be granted by the Court if the interests of creditors are properly safeguarded, and if the proposed reduction is a prudent and business like measure, not unfair to any shareholder, or detrimental to the public.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, Robertson, and Atkinson

Citations:

[1907] UKHL 616, 45 SLR 616

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 27 April 2022; Ref: scu.622293

London and India Dock Co v Attorney General: HL 8 May 1908

A company with an issue of debenture stock already in existence re-arranged the stock and modified the rights of the holders under the authority of a private Act. The stock was divided into two new classes, ‘A’ and ‘B,’ and existing stock-holders obtained certificates for a quantity of each class, proportionate to their original holdings, upon delivering up the old certificates.
Held that this amounted to an issue of debenture stock under the Finance Act 1899, sec. 8, and that the company was bound to deliver a statement thereof bearing the appropriate stamp-duty

Judges:

Lord Chancellor (Loreburn), Lords Ashbourne, Macnaghten, James of Hereford, and Atkinson

Citations:

[1908] UKHL 682

Links:

Bailii

Jurisdiction:

England and Wales

Stamp Duty, Company

Updated: 26 April 2022; Ref: scu.621510

British Equitable Assurance Co v Baily: HL 15 Dec 1905

The deed of settlement of an insurance company founded in 1854 provided that its profits were to be divided as directed by its bye-laws, and that its bye-laws could be altered by other byelaws.
In 1886 the bye-laws provided that the whole profits made in the mutual branch were to be divided among the policy-holders in that branch. In that year the company issued to the respondent a policy entitling him to pounds 400 on death, and ‘all such other sums, if any, as the said company by their directors may have ordered to he added to such amount by way of bonus or otherwise according to their practice for the time.’ There was nothing further in the policy or the proposal which could be construed into a contract by the assurance company to pay anything beyond the pounds 400, and the respondent’s proposal for insurance was made on a form in which he expressly agreed to ‘conform to and abide by the deed of settlement and bye-laws, rules, and regulations of the company in all respects.’ The respondent, however, had taken his policy relying upon a prospectus issued by the company, which stated:-‘The entire profits made by the company in the mutual department, after deducting the expenses, are divided among the policy-holders without any deduction for a reserve fund.’ In 1902 the assurance company proposed under the Companies Act 1890 to alter its constitution by becoming registered as a company with limited liability, with a memorandum and articles of association which provided that 5 per cent. of the profits of the mutual department were to be carried to a reserve fund. The proposed change was perfectly competent, looking to the constitution of the company as set forth in the original deed of settlement.
Held that the company had not contracted with the respondent that the whole of the profits of the mutual department should be divided among the policy–holders in that department. Judgment of Court of Appeal reversed.

Judges:

Lords Macnaghten, Robertson, and Lindley

Citations:

[1905] UKHL 578

Links:

Bailii

Jurisdiction:

England and Wales

Company, Insurance

Updated: 26 April 2022; Ref: scu.621196

Calthorpe v Trechmann Macleay v Tait: HL 15 Dec 1905

Section 38 of the Companies Act 1867 provides that every prospectus of a company shall specify certain particulars of any contract entered into by the company before the issue of the prospectus, and that any prospectus which does not do so ‘shall be deemed fraudulent’ on the part of the directors ‘knowingly issuing the same as regards any person taking shares in the company on the faith of such prospectus, unless he shall have had notice of such contract.’
In an action for damages for fraud brought against the directors of a company who had issued a fraudulent certificate within the meaning of the above section, by a person who had taken shares on the faith of the certificate, held (1) that to succeed he must prove (a) that had he known of the omitted contract he would not have become a shareholder; (6) that he had suffered damage; (2) that the omission having been due to an innocent mistake of the directors they were in any case protected by a clause of waiver waiving any fuller compliance with sec. 38 than that contained in the prospectus.
Per Lord Lindley-‘The language of the statute in terms applies to directors and others who knowingly issue a prospectus which does not disclose such a contract as is mentioned in the first part of the section, whether they knew of its existence or not. But it can hardly be supposed that the Legislature meant to brand with fraud a director who knowingly issued a prospectus but never knew of the existence of a contract which ought to have been disclosed. I cannot, however, think that the section can be properly restricted so as not to apply to a director who knew of a contract such as is described in the first part of the section but forgot all about it when he issued a prospectus not referring to it.’

Judges:

Lord Chancellor (Halsbury), Lords Robertson and Lindley

Citations:

[1905] UKHL 581, 43 SLR 581

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 26 April 2022; Ref: scu.621197

Cory and Son Ltd v Harrison and Others: HL 23 Nov 1905

A coal merchant, engaged both in the home and foreign trade, sold his home business to a company, entering at the same time into an agreement with the company not to ‘directly or indirectly carry on, or be engaged, or concerned, or interested in the coal trade in any part of Great Britain or the Isle of Man.’ He subsequently sold his foreign business to another company on credit, looking for payment to the company’s future profits. The company subsequently started a home business in Great Britain.
Held that the mere fact of his being a creditor of the company did not make him ‘concerned or interested in’ the coal trade in the meaning of the agreement.
This was an appeal from a judgment of the Court of Appeal (Williams, Stirling, and Cozens-Hardy, L.JJ.), who had affirmed a judgment of Joyce, J. The facts were as follows:- The respondent Harrison carried on business as a coal merchant, being engaged both in the home trade and also in an export trade. He sold his home trade to the appellants, who were also coal merchants, retaining the export trade, and entered into a covenant not to ‘directly or indirectly carry on, or be engaged, or concerned, or interested in the coal trade in any part of Great Britain or the Isle of Man.’ He afterwards sold his export trade to a company. The sale was not for cash, and he looked to the profits of the company’s trade for payment of the purchase money. The company afterwards began to carry on a home trade, and the appellants brought this action for breach of covenant, asserting that the respondent Harrison was ‘concerned or interested in’ the company’s coal trade in Great Britain.

Joyce, J., and the Court of Appeal gave judgment for the defenders. The pursuers appealed to the House of Lords.
At the conclusion of the argument for the appellants their Lordships gave judgment.

Citations:

[1905] UKHL 571, 43 SLR 571

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 26 April 2022; Ref: scu.621194

Ashton Gas Co v Attorney General and Others: HL 21 Nov 1905

The Special Act of a gas company provided that the profits of the company to be divided among the ordinary shareholders in any year should not exceed a specified rate.
Held that in calculating the rate of dividend income tax ought to be included.

Judges:

Lord Chancellor (Halsbury), Lords Robertson and Lindley

Citations:

[1905] UKHL 567, 43 SLR 567

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 26 April 2022; Ref: scu.621192

Hadsley v Dayer-Smith: HL 5 May 1914

Where there was a clause in a contract of partnership between house agents prohibiting an outgoing partner from carrying on or engaging or being interested in a similar business within a given area, held that an outgoing partner could be restrained from advertising houses to be let within the area although his place of business was outside.

Judges:

Lords Dunedin, Atkinson, Shaw, Sumner, and Parmoor

Citations:

[1914] UKHL 647, 52 SLR 647

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Company

Updated: 26 April 2022; Ref: scu.620719

Duff and Others v The SS ‘Overdale’ Co, Ltd: HL 2 Jul 1915

The articles of association of a one-ship company, article 37, provided: ‘The partners for the time being of Babtie and Company of Glasgow shall be the first managers of the company. . . ‘ Held (rev. judgment of the First Division) that the individuals who were partners of Babtie and Company at the time when the company was incorporated remained managers till death, resignation, disqualification, or removal, quite irrespective of any changes in the constitution of Babtie and Company.

Judges:

Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Parmoor, and Lord Wrenbury

Citations:

[1915] UKHL 849, 52 SLR 849

Links:

Bailii

Jurisdiction:

Scotland

Company

Updated: 26 April 2022; Ref: scu.620690

Famatina Development Corporation v Bury: HL 14 Jun 1910

A company raised capital upon pounds 10 bonds which were declared to be repayable, together with pounds 25 bonus, out of future net profits of the company. No profits were obtained. It was afterwards agreed with the bondholders that the claim to the bonus should be extinguished by the allotment of twenty pounds 1 shares, considered to be fully paid up, in respect of each bond. Held that, the charge being exclusively upon income, the issue of shares was ultra vires as being an issue of capital without payment in money’s worth.

Judges:

Lord Chancellor (Loreburn), Lords Macnaghten, Ashbourne, Collins, and Shaw

Citations:

[1910] UKHL 696, 48 SLR 696

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 25 April 2022; Ref: scu.619792

In Re Barings Plc, Secretary of State for Trade and Industry v Baker (No 5): ChD 25 Nov 1998

A person disqualified from acting as a company director might exceptionally be given permission to act as non-executive director in named companies where this appeared necessary and the cause of the original disqualification was unrelated.
As to the duties of directors, Jonathan Parker J said: ‘(i) Directors have, both collectively and individually, a continuing duty to acquire and maintain a sufficient knowledge and understanding of the company’s business to enable them properly to discharge their duties as directors. (ii) Whilst directors are entitled (subject to the articles of association of the company) to delegate particular functions to those below them in the management chain, and to trust their competence and integrity to a reasonable extent, the exercise of the power of delegation does not absolve a director from the duty to supervise the discharge of the delegated functions. (iii) No rule of universal application can be formulated as to the duty referred to in (ii) above. The extent of the duty, and the question whether it has been discharged, must depend on the facts of each particular case, including the director’s role in the management of the company.’
and ‘In considering the question of unfitness, the respondent’s conduct must be evaluated in context- ‘taken in its setting’ . . It follows . . that the court will assess the competence or otherwise of the respondent in the context of and by reference to the role in the management of the company which was in fact assigned to him or which he in fact assumed, and by reference to his duties and responsibilities in that role. Thus the existence and extent of any particular duty will depend upon how the particular business is organised and upon what part in the management of that business the respondent could reasonably be expected play (see Bishopsgate Investment Management Ltd (in liq) v. Maxwell (No 2) [1993] BCLC 1282 at 1285 per Hoffmann LJ) . . Thus while the requisite standard of competence does not vary according to the nature of the company’s business or to the respondent’s role in the management of that business- and in that sense it may be said that there is a ‘universal standard- that standard must be applied to the facts of each particular case. Hence to say that the Act envisages a ‘universal’ standard of competence applicable in all circumstances takes the matter little further since it says nothing about whether the requisite standard has been met in any particular case. What can be said is that the court, whilst taking full account of the demands made upon a respondent by his management role, will recognise incompetence in whatever circumstances and at whatever level of management it occurs, from the chairman of the board down to the most junior director.’
and: ‘In my judgment it can be no defence to a charge of unfitness based on incompetence for a respondent to contend that even if he was grossly incompetent in discharging the management role in fact assigned to him, or which he in fact assumed, nevertheless he has not been shown to be unfit to be concerned in the management of any company, since it is possible to conceive of a management role (whether in the company or companies in question or in some other company altogether-real or imagined) which he could have performed competently-what I might call the ‘lowest common denominator’ approach. In the context of an issue as to unfitness it is neither here nor there whether a respondent could have performed some other management role competently. That is not the test of ‘unfitness’ for the purposes of s 6 (although of course it may be a relevant factor in the context of an application for leave under s. 17 of the Act . .). Under s. 6 the court is concerned only with the conduct in respect of which complaint is made, set in the context of the respondent’s actual management role in the company. If in his conduct in that role the respondent was guilty of incompetence to the requisite degree, then a finding of unfitness will be made and (under s 6) a disqualification order must follow . .’

Judges:

Jonathan Parker J

Citations:

Gazette 25-Nov-1998, [1999] 1 BCLC 433

Statutes:

Company Directors Disqualification Act 1986 17

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re Barings plc (No 5) CA 2000
A finding of breach of duty is neither necessary nor of itself sufficient for a finding of unfitness. As the judge (at first instance) observed a person may be unfit even though no breach of duty is proved against him or may remain fit . .
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 . .
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 . .
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 – Secretary of State for Business Innovation and Skills v Aaron and Others ChD 10-Dec-2009
The claimant sought a disqualification after the defendants had been directors of a company mis-selling Structured Capital at Risk products. The FSA had reported that they had been negligent.
Held: ‘I do not have to decide whether or not the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 24 April 2022; Ref: scu.81737

X-GmbH v Finanzamt Stuttgart – Korperschaften: ECJ 5 Jun 2018

(Opinion) Reference for a preliminary ruling – Free movement of capital – Articles 56 and 57 EC – Movements of capital between Member States and third countries – Restrictions – Standstill clause – Direct investment – Regulation of a Member State providing for the taxation of income from companies with their headquarters abroad – Justification – Combating purely artificial arrangements – Balanced distribution of the power of taxation – Preservation of the effectiveness of tax audits

Citations:

ECLI: EU: C: 2018:389, [2018] EUECJ C-135/17 – O

Links:

Bailii

Jurisdiction:

European

Company

Updated: 22 April 2022; Ref: scu.617002

Wilton UK Ltd and Another v Shuttleworth and Others: ChD 1 May 2018

The court was asked: ‘i) Whether permission to continue company derivative proceedings should now be given pursuant to s263 Companies Act 2006 (‘CA 2006’);
ii) Whether retrospective permission should be granted to begin the proceedings, thereby validating certain procedural steps that have been taken in the proceedings without permission of the court, namely service of the proceedings and service of particulars of claim.

Citations:

[2018] EWHC 911 (Ch), [2018] WLR(D) 292

Links:

Bailii, WLRD

Statutes:

ompanies Act 2006 263

Jurisdiction:

England and Wales

Company

Updated: 22 April 2022; Ref: scu.616149

Burberry Group Plc v Fox-Davies: ChD 9 Feb 2015

The company resisted an application for release of a copy of the register of members to the respondent. The company, long established was under a duty to trace
Held: The request was invalid in form and had been for an improper purpose.

Judges:

Registrar Briggs

Citations:

[2015] EWHC 222 (Ch)

Links:

Bailii

Statutes:

Companies Act 2006 117(3)

Jurisdiction:

England and Wales

Company

Updated: 20 April 2022; Ref: scu.566760

Koza Ltd and Another v Akcil and Others: CA 18 Oct 2017

Appeal as to jurisdiction in dispute over control of English registered company based in Turkey.

Judges:

Floyd, Flaux LJJ

Citations:

[2017] EWCA Civ 1609, [2018] 1 BCLC 591

Links:

Bailii

Statutes:

Regulation (EU) No 1215/2012

Jurisdiction:

England and Wales

Citing:

Appeal from – Koza Ltd and Another v Akcil and Others ChD 21-Dec-2016
. .

Cited by:

See Also – Koza Ltd and Another v Akcil and Others ChD 16-Nov-2017
. .
See Also – Koza Ltd and Another v Akcil and Others ChD 26-Feb-2018
Application to add party out of jurisdiction and for service . .
See Also – Koza Ltd and Another v Akcil and Others ChD 19-Jun-2018
Struggle for control of company . .
See Also – Koza Ltd and Another v Akcil and Others CA 23-May-2019
Whether proposed payments would be in breach of undertakings given as to dealing with assets in impending litigation. . .
See Also – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Company, European

Updated: 18 April 2022; Ref: scu.597404

Koza Ltd and Another v Akcil and Others: ChD 19 Jun 2018

Struggle for control of company

Judges:

Morgan J

Citations:

[2018] EWHC 1612 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Koza Ltd and Another v Akcil and Others CA 18-Oct-2017
Appeal as to jurisdiction in dispute over control of English registered company based in Turkey. . .
See Also – Koza Ltd and Another v Akcil and Others ChD 21-Dec-2016
. .
See Also – Koza Ltd and Another v Akcil and Others ChD 16-Nov-2017
. .
See Also – Koza Ltd and Another v Akcil and Others ChD 26-Feb-2018
Application to add party out of jurisdiction and for service . .

Cited by:

Appeal from – Koza Ltd and Another v Akcil and Others CA 23-May-2019
Whether proposed payments would be in breach of undertakings given as to dealing with assets in impending litigation. . .
At first Instance – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 18 April 2022; Ref: scu.618980

Synaptek Ltd v Young (Inspector of Taxes): ChD 28 Mar 2003

The taxpayer was a computer consultant working through the medium of a limited liability company. The respondent sought to make him liable for social security contributions as an employee of the business which used his services.
Held: The anti-avoidance provisions were effective. The court listed the factors which weighed on either side of asking whether he was an employee, but included that he only financial risk to him was of the client company’s insolvency, the contract was for a fixed period. And he was integrated into the work force, having a line manager. What weight was to be given to each factor was a matter of fact for the commissioners, and the court was unable to say that they were wrong in law.

Judges:

Hart J

Citations:

Times 07-Apr-2003, Gazette 05-Jun-2003, [2003] ICR 1149

Statutes:

Finance Act 2000, Social Security Contributions (Intermediaries) regulations 2000 (2000 No 727) 6

Jurisdiction:

England and Wales

Citing:

Cited – Professional Contractors’ Group and Others v Commissioners of Inland Revenue CA 21-Dec-2001
Legislation had been enacted to tax under Schedule E, people employed through one man service companies and similar. Representatives of such taxpayers sought review of the legislation as incompatible with European law being a hindrance to the . .

Cited by:

Cited – Usetech Ltd v HM Inspector of Taxes ChD 8-Oct-2004
The taxpayer operated through a one man limited company employed by a recruitment agency to provide IT services to a customer. He appealed a finding that he was liable to pay tax as an employee.
Held: The appeal was dismissed. The legislative . .
Lists of cited by and citing cases may be incomplete.

Company, Income Tax, Employment

Updated: 15 April 2022; Ref: scu.180509

Secretary of State for Trade and Industry v Crane and Another: ChD 4 Jun 2001

Outside of any statutory limitations, there was nothing to prevent a prosecutor making use of helpful ideas disclosed in civil proceedings in his case against a defendant. Questions about a defendant’s right of silence in criminal proceedings did not apply in civil matters. Judges in either court had powers to control their proceedings to prevent unfairness, but the purposes of the civil court could not be delayed indefinitely because of a risk that the defendant might be prejudiced in later criminal proceedings.

Citations:

Times 04-Jun-2001, Gazette 07-Jun-2001

Statutes:

Company Directors Disqualification Act 1986 20

Jurisdiction:

England and Wales

Company, Human Rights, Criminal Practice

Updated: 13 April 2022; Ref: scu.89129

Secretary of State for Trade and Industry v Ivens and Another: ChD 24 Sep 1997

Evidence of activities of director in non-insolvent but associated company admissible in disqualification proceedings.

Citations:

Times 24-Sep-1997

Statutes:

Company Directors Disqualification Act 1986 6

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 . .
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: 13 April 2022; Ref: scu.89138

Secretary of State for Trade and Industry v Tjolle and Others: ChD 9 May 1997

Delay and the probable short period of disqualification are proper reasons for Secretary of State to consider discontinuing proceedings. As to whether a person ‘assumes to act as a director’: ‘It may be difficult to postulate any one decisive test. I think what is involved is very much a question of degree. The court takes into account all the relevant factors. Those factors include at least whether or not there was a holding out by the company of the individual as a director, whether the individual used the title, whether the individual had proper information (e.g. management accounts) on which to base decisions, and whether the individual had to make major decisions and so on. Taking all these factors into account, one asks ‘was this individual part of the corporate governing structure’, answering it as a kind of jury question. In deciding this, one bears very much in mind why one is asking the question. That is why I think the passage I quoted from Millett J is important. There would be no justification for the law making a person liable to misfeasance or disqualification proceedings unless they were truly in a position to exercise the powers and discharge the functions of a director. Otherwise they would be made liable for events over which they had no real control, either in fact or law.’

Judges:

Jacob J

Citations:

Gazette 18-Jun-1997, Times 09-May-1997, [1998] 1 BCLC 333

Statutes:

Company Directors Disqualification Act 1985, Company Directors Disqualification Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Re Hydrodam (Corby) Ltd 1994
Millett J described a de facto director as: ‘a person who assumes to act as a director. He is held out as a director by the company, claims and purports to be a director, although never actually or validly appointed as such. To establish that a . .
Approved – Secretary of State for Trade and Industry v Elms 16-Jan-1997
‘At the forefront of the test I think I have to go on to consider by way of further analysis both what Millett J meant by ‘functions properly discharged only by a director’, and Mr Lloyd QC meant by ‘on an equal footing’. As to one it seems to me . .

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 . .
Explained – Re Kaytech International plc; Secretary of State for Trade and Industry v Kaczer and others CA 1999
Robert Walker LJ said that the expression ‘de facto director’ had been in use for a long time, and commented on the failure to distinguish in pleadings between pleas that someone was a shadow or a de facto director. The two different labels were not . .
Cited – The Secretary of State for Business, Innovation and Skills v Weston and Another ChD 5-Sep-2014
The Secretary of State sought company director disqualification orders against the defendants saying they had been convicted of making false instruments. The Insolvency service had decided against such proceedings, and the Crown Court judge, when . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 13 April 2022; Ref: scu.89147

Secretary of State for Trade and Industry v Carter and Others: ChD 14 Aug 1997

Affidavits supporting application to disqualify a company director must distinguish between fact, argument and the fault claimed. The respondents in such an application should be encouraged to focus on the essential factual matters in their affidavits in response. The liquidators, in their evidence should equally distinguish clearly between the facts bringing the case before the court and the matters upon which the allegations of unfitness were based.

Judges:

Neuberger J

Citations:

Times 14-Aug-1997

Statutes:

Company Directors Disqualification Act 1986, Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 (1987 No 2023) 6

Jurisdiction:

England and Wales

Company

Updated: 13 April 2022; Ref: scu.89126

Scandecor Development Ab v Scandecor Marketing Ltd and Another: ChD 9 Mar 1998

A company with same name as a registered trademark could trade under that name provided the use was honest and otherwise within the section.

Citations:

Times 09-Mar-1998, Gazette 25-Mar-1998, [1998] FSR 500

Statutes:

Trade Marks Act 1994 11(2)(a)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Scandecor Development Ab v Scandecor Marketing Ab and Another (No 2) CA 7-Oct-1998
Actions for passing off and Trade Mark infringement tended to end up as factual disputes resolvable only after a full enquiry. ‘Not a branch of law in which references to these cases is of an real assistance.’ . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Company

Updated: 13 April 2022; Ref: scu.89041

Regina v McDonnell: 1966

Bristol Assizes – the defendant was indicted, inter alia, with two counts of conspiring with a company. Each count concerning a separate company. The defendant was the ‘sole person in either of the companies . . responsible for any of the acts of the company and no one else had any authority to act for the company or any responsibility for the acts of the company.’
Held: Nield J said that ‘a company and a director cannot be convicted of conspiracy when the only human being who is said to have broken the law or intended to do so is the one director’

Judges:

Nield J

Citations:

[1966] 1 QB 233, (1966) 50 Cr App R 5

Jurisdiction:

England and Wales

Cited by:

Cited – A Ltd and Othersi, Regina v CACD 28-Jul-2016
The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act . .
Lists of cited by and citing cases may be incomplete.

Company, Crime

Updated: 12 April 2022; Ref: scu.570727

In Re Ritson, Ritson v Ritson: CA 1899

The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] was only his share of the surplus after payment of the joint debts’

Judges:

Chitty LJ, Lindley MR

Citations:

[1899] 1 Ch 128

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re Ritson ChD 1898
. .

Cited by:

Cited – Highbury Pension Fund Management Company and Another v Zirfin Investments Ltd and Others ChD 14-Feb-2013
The court was asked: ‘a) Does the doctrine of marshalling permit the marshalling of securities held over property that does not belong to the common debtor? In particular, is a creditor of a guarantor entitled to marshal (or be subrogated to) . .
Cited – McLean and Another v Trustees of The Bankruptcy Estate of Dent and Others ChD 26-Oct-2016
Marshalling your Dogs Equitably
Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of . .
Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 12 April 2022; Ref: scu.570481

Director of Public Prosecutions v Kent and Sussex Contractors Ltd: 1945

The court considered the liability of a company under provisions being, ‘with intent to deceive, made use . . of a document which was false in a material particular’
Held: The General Manager was capable of acting or speaking as the company;

Judges:

Lord Caldecote

Citations:

[1944] KB 146, [1944] 1 All ER 119

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.

Company, Crime

Updated: 12 April 2022; Ref: scu.565997

Dickson v Pharmaceutical Society of Great Britain: HL 1970

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

Judges:

Lord Reid

Citations:

[1970] AC 403

Jurisdiction:

England and Wales

Cited by:

Cited – 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. . .
Cited – 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. . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Company, Commercial

Leading Case

Updated: 10 April 2022; Ref: scu.221578

Philip Morris Products Inc and Another v Rothmans International Enterprises Ltd and Another: ChD 10 Aug 2000

For the purposes of the Takeover Panel, a party could trigger the provision which applied on obtaining more than 30% of the share capital of a target company, where his shareholding, together with that of a party with whom he was acting in concert exceeded that limit. The provisions were activated if it could be shown that there was an understanding with another shareholder as to the exercise of voting rights.

Citations:

Times 10-Aug-2000, Times 21-Sep-2000

Jurisdiction:

England and Wales

Citing:

Appealed to – Philip Morris Products Inc and Another v Rothmans International Enterprises Limited and Another CA 4-Jul-2001
One tobacco company licensed another to distribute and sell its products in the UK. When control of the licensee changed, the licensor sought to revoke the licence. The licensee appealed against a refusal of an injunction to maintain the licence. . .

Cited by:

Appeal from – Philip Morris Products Inc and Another v Rothmans International Enterprises Limited and Another CA 4-Jul-2001
One tobacco company licensed another to distribute and sell its products in the UK. When control of the licensee changed, the licensor sought to revoke the licence. The licensee appealed against a refusal of an injunction to maintain the licence. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 09 April 2022; Ref: scu.84706

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.

Citations:

Independent 13-Jan-1994, Times 21-Jan-1994

Statutes:

Rules of the Supreme Court Order 53 3(7)

Cited by:

See Also – 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. . .
See Also – Regina v Darlington Borough Council Ex Parte Association of Darlington Taxi Owners and Darlington Owner Drivers Association (No 2) 1995
The court made an order for costs against the members of the Association on rejection of its request for permission to bring judicial review proceeds, even though he had found that the Association was not a legal person capable of bringing such . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Company

Updated: 09 April 2022; Ref: scu.86507

Mubarak v Mubarak: FD 30 Nov 2000

In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful to ensure that there were no third parties whose position could be prejudiced by the making of such an order. The power to lift the corporate veil is less clear in the Family Division. Here, however, there were genuine third party rights, including the commercial creditors and directors with fiduciary duties, who opposed the ceasing of the company’s trade. ‘[C]ompany law is predominantly concerned with parties at arm’s length in a contractual or similar relationship’ but family law is ‘concerned with the distributive power of the court as between husband and wife applying discretionary consideration to what will often be a mainly, if not entirely, family situation.’ and ‘it is quite certain that company law does not recognise any exception to the separate entity principle based simply on a spouse’s having sole ownership and control.’
Bodey made several comments about the situation: ‘Looking at the totality of the husband’s presentation, it was, in my view, sufficient to amount to a concession that he was to be treated for the purpose of the proceedings as the ultimate owner, not only of the company shares but also of the assets belonging to the companies. However, that concession cannot, in my view, be binding on the companies: he was not a director of DIL at the material time and did not, on the evidence, have the authority to bind either Board of Directors in saying that company assets could be seised and used for the satisfaction of his personal liabilities towards the wife.’ and
‘The fact that the husband purported and appeared to be able during the various ‘stay’ hearings to use and control company assets as if his own and the fact that the directors may in practice not have objected to that course whilst a stay was in place or in the offing, does not prove that in the last analysis he was able to establish and enforce against the companies the right in law to do so.
So although the earlier findings based on the husband’s concession that he was the owner of the companies are res judicata against him, they are not binding on the companies.’ and
‘Mr Aiyer has been described on behalf of the wife as a mere cipher of the husband, the implication being that he is masterminding the companies’ intervention and opposition to the seizure of its jewellery simply to assist the husband in avoiding his proper obligations to the wife. However, having seen Mr Aiyer, albeit briefly (and whilst I do not doubt he has discussed with the husband the tactical advantages of the companies fighting to retain the stock and that he is acting in line with the husband’s wishes) I conclude that, nonetheless, he is also genuinely concerned with his duty as a director to safeguard company assets.
I did not get the impression from him that the board’s resistance to the order is driven purely by instructions from the husband, nor purely by the board’s wish to help the husband in resisting payment of the lump sum order.’
Bodey J concluded: ‘At the end of the day, both companies are bona fide trading companies incorporated well before the matrimonial difficulties of the husband and wife. DIL is indeed incorporated outside this jurisdiction and the husband is not a director. It is not suggested that they are as such being used as a sham or device, albeit that their existence is very convenient to the husband. In my judgment, there do exist genuine third party rights and interests which ought to be respected, namely the interests of bona fide commercial creditors (one of them secured on the jewellery) and the position of directors who have fiduciary duties and who oppose the seizure of stock in trade. The facts of this case are far away from those of Green v Green [1993] 1 FLR 326 which Mr Pointer asks me to follow.
Applying the above proposed approach as regards lifting the corporate veil to the evidence now before me and having heard full legal argument, I come to the conclusion that this case does not fall within the necessarily circumscribed circumstances in which lifting the veil would be acceptable. However much the court may wish to assist a wife and children where a lump sum has not been paid, I am satisfied that doing so here, whensoever it may be permissible, would be a step too far in all the circumstances.’

Judges:

Bodey J

Citations:

Times 30-Nov-2000, [2001] 1 FCR 193, [2001] 1 FLR 673

Cited by:

Cited – Corbett v Corbett CA 28-Feb-2003
After an order had been made for periodical payments to the wife, the former husband entered into a new relationship, but began to get in financial difficulties, and arrears. Over the course of time, he did not make effective disclosure of his . .
Cited – Ellis v Ellis CA 24-Jun-2005
The defendant appealed a suspended committal order in respect of his failure to pay maintenance. The husband had unilaterally reduced payments at the same time as withdrawing his application to vary the order.
Held: The defendant simply piled . .
Cited – G v G and Another FdNI 25-Oct-2003
There had been a long but argumentative marriage, and the parties disputed distribution of the assets on an ancillary relief application.
Held: The husband could not claim to discount shareholdings as a minority shareholding where he also . .
Appeal from – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
See Also – Mubarak v Mubarik FD 9-May-2006
. .
See Also – Mubarak v Mubarik and others FD 12-Jan-2007
. .
See Also – Mubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .
Cited – Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
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, Family

Updated: 09 April 2022; Ref: scu.84104

Director General of Fair Trading v Pioneer Concrete (UK) Ltd, sub nom Supply of Ready Mixed Concrete (No 2): HL 25 Nov 1994

The actions of company employees, acting in the course of their employment and in contempt may put the company employer in contempt also, and even though the company may have given explicit instructions that no infringing agreement should be entered into.

Citations:

Independent 30-Nov-1994, Times 25-Nov-1994, Gazette 05-Jan-1995, [1995] 1 AC 456

Citing:

Appeal from – In Re Supply of Ready Mixed Concrete (No 2) CA 8-Jul-1993
An employer was not liable for its employee’s action in contempt of court against the company’s clear instructions with regard to anti-competitive agreements. . .
See Also – Director General of Fair Trading v Smiths Concrete: re Supply of Ready Mixed Concrete 1992
For a person to be found in contempt of a court order it is necessary to show that that he knew of the relevant order and with that knowledge he intended to do the act which amounted to a breach of the court order. It is not necessary to show that . .

Cited by:

Cited – Bird v Hadkinson ChD 4-Mar-1999
A party ordered to make disclosure in Mareva proceedings, could be found in contempt where the answers given were technically true, but misleading because of their incompleteness. The party has a clear duty to provide full and accurate disclosure. A . .
Cited – Gulf Azov Shipping Company Ltd v Idisi ComC 22-Nov-2000
Application to commit defendant to prison for contempt of court. . .
Cited – Ferguson v British Gas Trading Ltd CA 10-Feb-2009
Harassment to Criminal Level needed to Convict
The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Company, Vicarious Liability

Updated: 08 April 2022; Ref: scu.82207

In Re Carecraft Construction Co Ltd: ChD 13 Oct 1993

A court must hear evidence before disqualifying directors. Though the Director and the Secretary of State might reach an agreement as to what should happen, they could not displace the court in deciding what order should be made, and in making that order.
The court approved the submission by the parties to the Court an agreed statement of facts upon which the Court is invited to assess what order should be made.
Ferris J said: ‘the Secretary of State can and should cause an application for a disqualification order to be abandoned if it ceases to appear to him that the making of a disqualification order against the respondent to that application is ‘expedient in the public interest’. I was told that the Secretary of State does in fact act upon this principle and I have no doubt that this is so. But the Secretary of State has no general power to compromise a claim for a disqualification order which he continues to regard as being expedient in the public interest. In particular he cannot accept an undertaking in lieu of a disqualification order, because that would not protect the public in the way that the disqualification order does by virtue of the consequences presented by section 13 and section 15. He cannot decide that particular conduct does or does not amount to unfitness, for it is the court, not the Secretary of State which has to be satisfied on the relevant matters. He cannot agree that matters to which regard must be had by virtue of section 9(1) should be left out of account and he cannot bargain with the respondent concerning the length of any period of disqualification, for it is the court which has to decide this, subject to the statutory limits.
In disqualification proceedings, therefore, there is no scope for the parties to reach an agreement and then ask the court to embody their agreement in a consent order. The court itself has to be satisfied, after having regard to the prescribed matters and other facts which appear to be material, that the respondent is unfit to be concerned in the management of a company; and the court itself must decide the period of disqualification if it decides to make a disqualification order.’

Judges:

Ferris J

Citations:

Gazette 13-Oct-1993, [1994] 1 WLR 172, [1993] 4 All ER 499

Statutes:

Company Directors Disqualificatin Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – Davies v The United Kingdom ECHR 16-Jul-2002
The applicant had been subject to applications for his disqualification from acting as a company director. The Secretary of State waited until the last day before issuing proceedings, and the proceedings were then delayed another three years pending . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
developed – Secretary of State for Trade and Industry v Rogers 1996
If fraud is to be alleged against a company director in disqualification proceedings, the allegation must be distinctly alleged and as distinctly proved. . .
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Eastaway v Secretary of State for Trade and Industry CA 10-May-2007
The applicant had been subject to company director disqualification proceedings. Eventually he gave an undertaking not to act as a company director, but then succeeded at the ECHR in a complaint of delay. He now sought release from his undertaking . .
Cited – Kluk v Secretary Of State for Business, Enterprise and Regulatory Reform ChD 20-Dec-2007
. .
Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012
The directors appealed against disqualification orders made against them under the 1986 Act. Their company had become insolvent, owing substantial arrears of PAYE and NI contributions. The revenue had said that they had paid other creditors first. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 April 2022; Ref: scu.81805

In Re Britannia Homes Centres Ltd and the Company Directors Disqualification Act 1986; Official Receiver v Mccahill: ChD 29 Jun 2000

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

Citations:

Gazette 29-Jun-2000

Statutes:

Company Directors Disqualification Act 1986

Company

Updated: 08 April 2022; Ref: scu.81758

ICI Plc v Colmer (Inspector of Taxes): HL 15 Mar 1996

A ‘Holding company’ under the Act meant a company resident in the UK; A reference was made of the issues to the European Court.

Citations:

Times 15-Mar-1996

Statutes:

Income and Corporation Taxes Act 1970 285(5)(b)

Citing:

Appeal from – Imperial Chemical Industries v Colmer (Inspector of Taxes) CA 9-Aug-1993
Group tax relief was available despite other subsidiary companies within the same group being offshore. . .

Cited by:

Reference from – Imperial Chemical Industries v Colmer ECJ 16-Jul-1998
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .
Reference from – Metallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
See Also – Pickford v Imperial Chemical Industries Plc HL 30-Jun-1998
In the absence of conclusive evidence establishing a cause of a condition, the judge was free to find that causation was not established and that the claim was lost. There was no necessary obligation on an employer to have procedures which might . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 08 April 2022; Ref: scu.81593

Fletcher and Another v Royal Automobile Club: ChD 3 Mar 1999

Where a court order for the re-arrangement of a company was alleged to have been obtained by fraud, the order approving the scheme was not beyond challenge, and the court had power to set it aside in appropriate circumstances.

Citations:

Times 03-Mar-1999, Gazette 17-Mar-1999

Statutes:

Companies Act 1985 425(2)

Jurisdiction:

England and Wales

Company

Updated: 08 April 2022; Ref: scu.80600

Shannan and Others v Viavi Solutions UK Ltd and Others: CA 28 Mar 2018

The court was asked whether the definitive deed and rules of the Wandel and Goltermann Retirement Benefits Scheme (the ‘Scheme’), dated 15 September 1999 (the ‘1999 Deed’), was validly executed so as to amend the governing provisions of the Scheme. The dispute centres around whether Wandel and Goltermann Management Limited (‘Management’) was the appropriate company to execute the 1999 Deed.

Citations:

[2018] EWCA Civ 681

Links:

Bailii

Jurisdiction:

England and Wales

Company

Updated: 07 April 2022; Ref: scu.608363

Skatteministeriet v T Danmark: ECJ 1 Mar 2018

Opinion – Approximation of Laws – Reference for a preliminary ruling – Directive 2011/96 / EU on the common system of taxation applicable to parent companies and subsidiaries of Member States (referred to as the Parent-Subsidiary Directive) – Necessity of an effective beneficiary in the event of dividend payments – Misuse tax adjustment possibilities – Criteria relating to the existence of an abuse committed with the aim of evading taxation at source – Impact of the comments of the OECD model convention on the interpretation of a tax directive European Union – Direct Application of a Non-Transposed Directive Provision – Interpretation in Accordance with EU Law of National Principles for the Prevention of Abuse

Citations:

ECLI:EU:C:2018:144, [2018] EUECJ C-116/16 – O

Links:

Bailii

Jurisdiction:

European

Company

Updated: 06 April 2022; Ref: scu.606030

Julien and Others v Evolving Tecknologies and Enterprise Development Company Ltd: PC 19 Feb 2018

Trinidad and Tobago – Commencement of limitation period in claim based upon allegation of breach of company director’s or fraud.

Judges:

Lord Kerr, Lord Reed, Lord Hughes, Lord Lloyd-Jones, Lord Briggs

Citations:

[2018] UKPC 2

Links:

Bailii

Jurisdiction:

Commonwealth

Limitation, Company

Updated: 05 April 2022; Ref: scu.605690

The English Electric Company Ltd v Alstom UK: QBD 10 Jul 2017

The clamant had been found liable for malignant mesothelioma incurred by a former employee. It now sought a contribution or indemnity from another former employer.

Judges:

Waksman QC HHJ

Citations:

[2017] EWHC 1748 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Company

Updated: 05 April 2022; Ref: scu.589919