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 those rights.
Held: There had been conspiracies with many fabricated documents and meetings, and witnesses failing to tell the truth. Nevertheless the conspiracies were not as widespread as suspected by the claimant. As to the allegations of the effect of the presence of shadow directors: ‘if a person becomes a shadow director as a result of the board being accustomed to act on his instructions or directions, transactions entered into before it can be said that the board is so accustomed are not retrospectively invalidated.’
An unqualified demand for payment of sums due under a voidable contract amounts to an election to affirm the contract. The court made findings on the several claims and counterclaims.
Lewison J
[2005] EWHC 1638 (Ch)
Bailii
England and Wales
Citing:
Cited – Stephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL 16-May-1985
The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
Cited – McPhilemy v Times Newspapers Ltd and Others (2) CA 26-May-1999
The new Civil Procedure Rules did not change the circumstances where the Court of Appeal would interfere with a first instance decision, but would apply the new rules on that decision. Very extensive pleadings in defamation cases should now be . .
Cited – McPhilemy v Times Newspapers Ltd (No 4) CA 3-Jul-2001
The fact that a defendant had not acted unreasonably in pursuing a case after an offer of settlement, was not a reason for not awarding costs to be paid on an indemnity basis. Such an award had no penal element, and did not first require any . .
Cited – Regina v Salisbury 19-May-2004
Directions as to the effect of witness training
(Crown Court at Chester) The judge gave directions as to the effect of witness training: ‘The course was delivered by a member of the Bar I judge to have been well aware of the implications. She took pains to ensure that any witnesses who attended . .
Cited – Loveridge and Loveridge v Healey CA 20-Feb-2004
The landowner sought to recover possession of land occupied under an agreement by a mobile home owner.
Held: It was necessary for the land owner to show that he had complied with the requirements under the Act. It was insufficient for the . .
Cited – Re Forest of Dean Mining Co 1878
Jessel MR said: ‘Again, directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company. The company is the creditor, and, . .
Cited – Re Lands Allotment Company CA 1894
A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
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 . .
Cited – 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 – 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. . .
Cited – Re Canadian Land Reclaiming and Colonizing Co CA 1880
The court was asked whether two individuals who had been appointed and acted as directors while they were ineligible were directors or other officers liable to a summons for misfeasance.
Held: The test was was whether a man who had assumed a . .
Cited – Ultraframe UK Limited v Clayton, Fielding and Others CA 12-Dec-2003
The company was 100% owned by its designer. He purported to retain the design right.
Held: The designer held the rights in trust for the company. An assignment by a shareholder holding all the shares in a company was possible, but not when the . .
Cited – Re: A Company (No. 005009 of 1987), ex parte Copp ChD 1988
MC Bacon Ltd had borrowed money from a bank. The loan was unsecured. The company got into financial difficulty. The bank commissioned a report on the company’s financial affairs; and insisted on the grant of a debenture to secure the company’s . .
Cited – In re M C Bacon Ltd ChD 1990
A liquidator claimed that the costs of an unsuccessful attempt to set a floating charge aside should be paid out of the assets subject to the charge in priority to the claims of the charge holder.
Held: The rule was a complete statement of the . .
Cited – Secretary of State for Trade and Industry v Deverill and another CA 20-Jan-2000
When considering what constituted a shadow director, courts should be reluctant to move away from the words of the Act. The words should be construed carefully because the term was used in several pieces of legislation, including those with penal . .
Cited – Re Unisoft Group Limited (No 3) ChD 1994
When considering applications to strike out parts of pleadings in a s459 application, the courts had to recognise the need to be careful not to allow the parties to trawl through irrelevant grievances. B The statutory definition of ‘shadow director’ . .
Cited – Lord v Sinai Securities Ltd and others ChD 21-Jul-2004
For it to be found that a person had acted as a shadow director within the section, it must be shown that ‘all the directors, or at least a consistent majority of them,’ had been accustomed to act on the directions of the alleged shadow director. . .
Cited – Re PTZFM Ltd 1995
It had been alleged that a lender had become a shadow director of the borrower company. As to the statutory definition of ‘shadow director’: ‘This definition is directed to the case where the nominees are put up but in fact behind them strings are . .
Cited – Hutton v West Cork Rly Co CA 1883
Even though a company’s directors may act in good faith for a purpose which is ostensibly within their powers, the court may intervene in exceptional circumstances: ‘Bona fides cannot be the sole test, otherwise you might have a lunatic conducting . .
Cited – Soar v Ashwell CA 1893
Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .
Cited – Regentcrest plc v Cohen 2001
The good faith of the directors must be determined subjectively; the question is the director’s state of mind. . .
Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Cited – In Re Smith and Fawcett Ltd CA 1942
Directors to act Without Collateral Purpose
The primary duty of a director imposed by the general law is that he should act in what he considers to be the best interests of the company, and not for any collateral purpose. That duty is a subjective one that depends on the directors exercising . .
Cited – Brink’s Ltd v AbuSaleh 1999
Mrs Elcombe accompanied her husband on a number of trips to Switzerland. Mr Elcombe was carrying money which was part of the proceeds of the Brinks-Mat gold bullion robbery. However, Mrs Elcombe did not know that. She thought that the money was the . .
Cited – Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
Cited – Tintin Exploration Syndicate Ltd v Sandys 1947
The court considered the ability of a de facto director to rely on the 1939 Act as a defence to an action by the company to recover ‘trust property’.
Held: The defence failed. The court considered the circumstances in which fiduciary duties . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Howard Smith Limited v Ampol Petroleum Limited PC 14-Feb-1974
(New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued . .
Cited – 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 . .
Cited – 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 – Aberdeen Railway Co v Blaikie Brothers HL 1854
The plaintiff needed a large quantity of iron chairs (rail sockets) and contracted for their supply over an 18-month period with Blaikie Bros a partnership. Thomas Blaikie was the managing partner of Blaikie Bros and a director and the chairman of . .
Cited – In Plus Group Ltd v Pyke CA 6-Feb-2002
P was a director of In Plus. However, he had fallen out with his co-director; and had been effectively excluded from the management of the company. While still a director, he set up his own company which entered into contracts on its own behalf with . .
Cited – 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 . .
Cited – Multinational Gas and Petrochemical Co Ltd v Multinational Gas and Petrochemical Services Ltd CA 1983
The court considered the way that the duty of a director to his company arose: ‘The directors indeed stand in a fiduciary relationship to the company, as they are appointed to manage the affairs of the company and they owe fiduciary duties to the . .
Cited – Kak Loui Chan v Zacharia 1984
(High Court of Australia) The fundamental rule that obliged fiduciaries to account for personal benefit or gain had two separate themes: ‘The variations between more precise formulations of the principle governing the liability to account are . .
Cited – Secretary of State for Trade and Industry v Griffiths; Conway and Wassell; In Re Westmid Packing Services Ltd CA 16-Dec-1997
Guidance given on what evidence should be admitted to affect the length of disqualification and conditions of Director’s disqualification.
A director’s duty to exercise his powers in the best interests of the company and to recognise the . .
Cited – West Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
Cited – Vyse v Foster HL 1874
Where a person already has contractual relations with another, his assumption of a fiduciary role in relation to that other will not necessarily require him to abandon his own contractual interests. . .
Cited – London and Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd 1891
There is nothing inherently objectionable in the position of a company director (and chairman) who, without breaching any express restrictive agreement or disclosing any confidential information, becomes engaged, whether personally or as a director . .
Mentioned – Bell v Lever Brothers Ltd HL 15-Dec-1931
Bell was director and chairman of Niger, a subsidiary of Lever Brothers Ltd who dismissed him, offering and paying andpound;30,000 compensation. Lever then discovered that Mr Bell had made secret profits at the expense of Niger for which he could . .
Cited – Quarter Master UK Ltd v Pyke 2005
The ‘no conflict rule’ ceased to apply once a director had resigned his office went on to consider the ‘no profit rule.’ Paul Morgan QC: ‘The position is less straightforward in relation to the rules described above as to profiting from the property . .
Cited – 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 . .
Cited – British Midland Tool Limited v Midland International Tooling ChD 2003
Four former employees had set out to create a business in competition with the claimant. They had agreed to use unlawful means to do so.
Held: A director who decided to set up a competing business and took preparatory steps could rely upon the . .
Cited – Furs Ltd v Tomkies 1936
(High Court of Australia) ‘the inflexible rule that, except under the authority of a provision in the articles of association, no director shall obtain for himself a profit by means of a transaction in which he is concerned on behalf of the company . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Kelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
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 – Moss Steamship Co v Whinney 1912
The appointment of a receiver: ‘entirely supersedes the company in the conduct of its business, deprives it of all power to enter into contracts in relation to that business, or to sell, pledge or otherwise dispose of the property put into the . .
Cited – Cook v Deeks and Hinds PC 23-Feb-1916
Company Directors not free to prefer Own Interests
Deeks and Hinds were the directors of a construction company. They negotiated a lucrative construction contract with the Canadian Pacific Railway. During the negotiations, they decided to enter into the contract personally, on their own behalves, . .
Cited – Industrial Development Consultants Ltd v Cooley 1972
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the . .
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 – Gomba Holdings v Homan 1986
A receiver’s powers of management are really ancillary to the duty to manage the security, the property of the mortgagee, for the benefit of the mortgagee. In the context of the agency of a receiver which is no ordinary agency but primarily a device . .
Cited – Newhart Developments Ltd v Co-operative Commercial Bank Ltd CA 1978
The appointment of administrative receivers of a company with a view to realisation of certain charged assets did not deprive the directors of their duties and power to take other proceedings which did not impinge on the activities of the receivers. . .
Cited – Brown and Another v Bennett and Others CA 1-Dec-1998
Morritt LJ discussed the ‘corporate opportunitycases’: ‘Those are cases in which a beneficial commercial opportunity comes the company’s way and forms knowledge owned or possessed by the directors as agents for the company. Those directors then seek . .
Cited – 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 . .
Cited – Allen and Hanburys Ltd v Generics (UK) Ltd 1986
A licence: ‘passes no proprietary interest in anything; it only makes an action lawful which would otherwise have been unlawful.’ . .
Cited – Dendron Gmbh and others v Regents of University of California and Another PatC 23-Mar-2004
The claimants sought letters of request to obtain evidence to support applications they wished to make, including onme before the European Patents Office.
Held: The EPO when involved in opposition proceedings was not a domestic court, and . .
Cited – Bhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
Cited – Dendron GmbH v The Regents of the University of California 2004
Pumfrey J said: ‘I would reject the suggestion that the right that is conferred by the grant of a licence is anything wider than a consent on behalf of the patentee to the doing of an act which absent that consent would be unlawful.’ . .
Cited – Lindsley v Woodfull CA 2004
Mr Woodfull, while still a partner, incorporated a company which entered into a valuable contract with one of his partnership’s main customers (Colt), for which Mr Woodfull had been negotiating on behalf of the partnership.
Held: He was . .
Cited – Crown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
Cited – CBS United Kingdom Ltd v Charmdale Record Distributors Ltd 1981
The court discussed exclusive licenses of a copyright: ‘First, I would not expect a licensee to be treated as having a property interest in the copyright. Under the general law a licensee is a person who enjoys contractual rights as against the . .
Cited – Sport Internationaal Bussum BV v Inter-Footwear Ltd CA 1984
There had been a contractual licence to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay andpound;105,000 in three . .
Cited – Swift and Another v Dairywise Farms Limited and others CA 1-Feb-2001
The company lent money to farmers secured against their milk quotas. They had to petition for a winding up, and the liquidators requested authority to continue the milk loan repayment schemes. The milk quotas had been vested in the farmers, and the . .
Cited – Official Receiver As Liquidator of Celtic Extraction Ltd and Bluestone Chemicals Ltd v Environmental Agency CA 14-Jul-1999
A waste management licence is ‘property’ for the purposes of the Act. . .
Cited – Attorney-General of Hong Kong v Nai-Keung PC 1987
Textile export quotas (a permission to export textiles) which were surplus to the exporter’s requirements, which could be bought and sold under the apprpriate Hong Kong legislation, may be ‘property’ for the purposes of the law of theft. . .
Cited – 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 – Commonwealth of Australia v WMC Resources Ltd 1998
A permit to explore for petroleum may be ‘property’ for the purposes of compulsory acquisition. . .
Cited – Crittal Windows Ltd v Stormseal (UPVC) Window Systems Ltd 1991
. .
Cited – Demite Ltd v Protec Health Ltd ChD 1998
A sale by a receiver potentially fell within the scope of section 320. The receivers were the agents of the company and their act was the company’s act. The section expressly excluded from its scoe an arrangement made in the course of a winding up . .
Cited – Northern and Shell Plc v Conde Nast ChD 13-Feb-1995
A trade mark licensee cannot sue other licensees who had been properly authorised to use the Mark. . .
Cited – Northern and Shell Plc v Conde Nast ChD 13-Feb-1995
A trade mark licensee cannot sue other licensees who had been properly authorised to use the Mark. . .
Cited – NW Robbie and Co Ltd v Witney Warehouse CA 1963
A floating charge effects an equitable assignment of the charged asset to the security holder. . .
Mentioned – Guinness plc v Saunders HL 8-Feb-1990
Director – no claim for payment without authority
A committee of the board of Guinness had authorised payment of remuneration to Mr Ward, who was a director. However, the articles of association did not give authority to a committee of the board (as opposed to the full board) to authorise such a . .
Cited – Hely-Hutchinson v Brayhead Ltd 1968
Directors are required to disclose their interests in contracts with the company: ”It is not contended that [the] section in itself affects the contract. The section merely creates a statutory duty of disclosure and imposes a fine for . .
Cited – Buchler and another (as joint liquidators of Leyland DAF Limited) v Talbot and another (as joint administrative receivers of Leyland DAF Limited) and Stichting Ofasec and others HL 4-Mar-2004
The liquidator sought to recover his expenses from assets charged under a floating charge in priority to the chargee.
Held: Barleycorn was decided in error. The liquidators costs incurred in an insolvent winding up were not to be charged . .
Cited – Re Conegrade Ltd 2003
Lloyd J: ‘For my part, however, I do not see why, at any rate where there has been a meeting attended by all those who were entitled to attend and vote at a general meeting and that meeting has considered the matter and has resolved, in terms, that . .
Cited – Duckwari Plc v Offerventure Ltd and Another: In Re Duckwari Plc (no 2) CA 8-May-1998
A company director entering into an unapproved contract with his own company was liable to the company for the loss as at the time that loss was realised, not at the time of the breach. Where directors had entered into contracts with their company . .
Cited – 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 . .
Cited – In Re Neptune (Vehicle Washing Equipment) Ltd: Neptune (Vehicle Washing Equipment) Ltd v Fitzgerald ChD 2-Mar-1995
A sole company director must still have company meetings before entering into a contract even if only he will be present. When a director’s claim to the validity of a contract or arrangement depends upon his disclosure of it at a meeting, he must . .
Cited – George Barker Transport Ltd v Eynon CA 1974
It was incontrovertible that ‘the appointment of a receiver operates as an equitable assignment (by way of charge) of the property of the company to the debenture holder.’ . .
Cited – Killick v Roberts CA 1991
killick_robertsCA1991
The landlord claimed that the tenancy had expired by effluxion of time. The tenant alleged that the tenancy was a protected tenancy and that, since no written notice had been served on him pursuant to Case 13, he was a statutory tenant entitled to . .
Cited – Movitex v Bulfield ChD 1988
The court considered a company’s articles of association which excused a director taking an interest in a contract with the company. The court treated the general exclusion of the self-dealing rule in the Articles as subject to the duty of the . .
Cited – Croft v Lumley 1858
‘When a lessee commits a breach of covenant on which the lessor has a right of re-entry, he may elect to avoid or not to avoid the lease, and he may do so by deed or by word. If in that notice he says, under circumstances which bind him that he will . .
Cited – Expert Clothing Service and Sales Ltd v Hillgate House Ltd CA 1985
Landlords took possession after a successful, at first instance, forfeiture claim. The tenant succeeded on appeal and then brought a claim for the wrong of breach of the covenant for quiet enjoyment.
Held: The lease had been in existence all . .
Cited – David Blackstone Ltd v Burnetts (West End) Ltd 1973
The doctrine of election is the foundation of waiver of forfeiture. The question whether an unqualified demand for rent falling due after the date of the breach giving rise to the forfeiture amounts to an election to waive the forfeiture was . .
Cited – Segal Securities Limited v Thoseby QBD 1963
To demand rent may waive a right to forfeiture. Sachs J said: ‘When one looks at the authorities, it is, however, clear that a demand can operate as a waiver in the same way as an acceptance.’ Also the landlord’s own behaviour can be taken into . .
Cited – Lee Panavision Ltd v Lee Lighting Ltd CA 1992
The court considered an allegation of a failure to declare an interest to a company board meeting, met by a defence that the undeclared interest was common to and known by each of the directors.
Held: Dillon LJ said: ‘if the judge was entitled . .
Cited – Coleman Taymar Ltd and Others v Oakes and Another ChD 19-Jul-2001
A company director owed a fiduciary duty to his company, but that could not, of itself, prevent him making arrangements to set up in competition once his employment by the company came to an end, save only for acts during the period of his . .
Cited – Re Dominion International Group (No. 2) 1996
Knox J said: ‘On the other hand it has been held that where the directors are all in fact sufficiently aware of the matter that should be formally disclosed, the absence of formal disclosure may not amount to more than a technical non-declaration of . .
Cited – Runciman v Walter Runciman plc 1992
Simon Brown J said: ‘Whatever may have been the strict legal requirements of the position, on the particular facts of this case I am perfectly satisfied that for the plaintiff to have made a specific declaration of interest before agreement of the . .
Cited – El Ajou v Dollar Land Holdings Ltd CA 2-Dec-1993
The court was asked whether, for the purposes of establishing a company’s liability under the knowing receipt head of constructive trust, the knowledge of one of its directors can be treated as having been the knowledge of the company.
Held: . .
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Cited – 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 . .
Cited – Satnam Investments Ltd v Dunlop Heywood and Co Ltd and Others CA 13-Jan-1999
Satnam’s agents (DH) had passed on confidential information to the claimant’s business rival (Morbaine). Armed with this information Morbaine acquired a development site which Satnam had wanted to buy.
Held: The court rejected an argument that . .
Cited – Keech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
Cited – Clifford Harris and Co v Solland International Ltd and others ChD 12-Feb-2005
The solicitor claimants had represented the defendants in litigation. The defendant’s owners had given the firm a second charge on their property to secure their costs. The sums recovered were exceeded by the costs. The solicitors sought to exert a . .
Cited – Criterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
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 – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
Cited – Attorney General for Hong Kong v Reid and Others PC 24-Nov-1993
Principalhas proprietary interest in Trust assets
Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – JJ Harrison (Properties) Ltd v Harrison CA 11-Oct-2001
A director had bought land belonging to the company, without disclosing its development potential.
Held: He had acquired the property as a constructive trustee for the company, and was accordingly accountable for it. . .
Cited – Al-Sabah v Ali and Others ChD 3-Feb-1999
The solicitor employers of a solicitor who had acted under powers of attorney in transactions between the attorney and the principal which later proved fraudulent were negligent. The Land Registry was liable for the balance of damage suffered. Mance . .
Cited – Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA (Note) 1993
The court looked to various forms of knowledge which could be attributed to a party when considering a rectification. Knowledge may be proved affirmatively or inferred from circumstances. The various mental states which may be involved are (i) . .
Cited – Heinl and Others v Jyske Bank (Gibraltar) Ltd CA 8-Sep-1999
Where a party had in fact assisted another in a fraudulent act in breach of trust, that party was not to be held liable in equity on the basis that objectively he should have known that the acts assisted were fraudulent, but the test is rather . .
Cited – Re Jarvis 1958
An executrix ran a business which had been left to her and her sister.
Held: She was accountable in principle for profit, though the claim failed for other reasons: ‘What, then, is the proper method of assessing the accountability? Counsel for . .
Cited – Polly Peck International Plc v The Marangos Hotel Company Ltd and Others CA 7-May-1998
Leave had been given for the insolvent plaintiff company to bring proceedings. The defendant now challenged that leave.
Held: A claim that a massively insolvent company had wrongfully occupied Turkish Cypriot property would not allow a claim . .
Cited – Phipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
Cited – Nelson v Rye and Another ChD 5-Dec-1995
The claimant, a solo musician appointed the defendant to be his manager collecting the fees and royalties due to him and paying his expenses. Rye was to account to him annually for his net income after deducting his own commission. When the . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Consul Development Pty Ltd v DPC Estates Pty Ltd 1975
Gibbs J: ‘The question whether the remedy which the person to whom the duty is owed may obtain against the person who has violated the duty is proprietary or personal may sometimes be one of some difficulty. In some cases the fiduciary has been . .
Cited – Warman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
Cited – Timber Engineering Co Pty Ltd v Anderson 1980
(New South Wales) The manager and a sales representative of TECO set up separate competing business. Anderson with his wife, began a new company Mallory Trading Pty Ltd which acted as a a fraud on TECO. On learning of each others acts, they joined . .
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 – Trustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
Cited – Gencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
Cited – Vyse v Foster CA 1872
James LJ: ‘This Court is not a Court of penal jurisdiction. It compels restitution of property unconscientiously withheld; it gives full compensation for any loss or damage through failure of some equitable duty; but it has no power of punishing any . .
Cited – Comax Secure Business Services Ltd v Wilson 21-Jun-2001
Mr Wilson (who appeared in person) was held liable to account for profits received by a company called Nemesis Ltd, which he controlled. The dishonest assistant was himself in a position to receive the profit personally, which he chose not to . .
Cited – Fyffes Group Ltd and Others v Templeman and Others QBD 14-Jun-2000
A person who bribed an agent to award a contract was liable to account for profits secured by the bribery as was the agent he bribed, but unlike for the agent, the extent of his liability was limited to exclude profits which he would have earned in . .
Cited – Re Case of Taff Wells Ltd 1992
The court considered whether the liquidation of a company stopped time running for insolvency purposes: ‘One may conclude that the effect of an order to wind up is to convert the contractual rights of the creditors into proprietary rights under a . .
Cited – Building Product Design Ltd v Sandtoft Roof Tiles Ltd (No. 2) 2004
An action was originally brought alleging infringement from a ‘vent tile’ which would be used in the ridge of a roof. What was pleaded was a clay half-round ridge vent tile; and this tile was the only infringement mentioned in the agreed order. BPD . .
Cited – Pink v Sharwood 1913
The goodwill of a business can be taken to have been abandoned where for example a business is discontinued, with no prospect of restarting, and its assets are broken up and sold. It was not possible for the claimant to obtain an injunction . .
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 – Modus Vivendi pc v Keen (World Marketing Ltd) 5-Jul-1995
The case concerned the sale of Ronson butane gas cans in China. Ronson’s distributor in China introduced his own product (deceptively similar to Ronson’s product) under the name ‘Purilite’.
Held: ‘Purilite until . . November 1990 promoted . .
Cited – Kark (Norman) Publications Ltd v Odhams Press Ltd 1962
Wilberforce, J described the basis of a passing off action in respect of the name of a newspaper or magazine as being a proprietary right not so much in the name itself but in the goodwill established through the use of the name in connection with . .
Cited by:
See Also – Ultraframe (UK) Ltd v Fielding and others ChD 11-Nov-2005
Ultraframe asked the judge to re-open his ‘in the round’ decision on costs.
Held: The decision questioned was not a draft, but a concluded judgment. The judge said that he had not made such a ‘palpable error’ in his order as to give him . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.229273