Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0020
B. Hannigan
This chapter discusses further aspects of shareholder remedies, namely the common law multiple derivative claim; derivative claims under Companies Act 2006 (CA 2006), Part 11; the reflective loss principle; personal actions at common law; and specific statutory rights under the CA 2006. At common law, a shareholder aggrieved by a breach of duty by a director could bring a derivative claim on behalf of the company, as an exception to the rule in Foss v Harbottle. That common law claim now remains as a common law multiple derivative claim whereas the ‘ordinary’ derivative claim now is a statutory claim under CA 2006, Part 11. This chapter explores both types of derivative claim and assesses their value to shareholders. An important constraint on shareholder recovery is the principle governing reflective loss which has recently been restated by the Supreme Court. This chapter considers the current position in the light of that development.
本章进一步探讨了股东救济的几个方面，即普通法多重派生索赔;《2006年公司法》(CA 2006)第11部分下的衍生索赔;反射损耗原理;普通法上的个人诉讼;以及《2006年条例》下的具体法定权利。在普通法上，因董事违反义务而受到损害的股东可以代表公司提出派生索赔，作为Foss v Harbottle规则的例外。普通法索赔现在仍然是普通法多重衍生索赔，而“普通”衍生索赔现在是《CA 2006》第11部分下的法定索赔。本章探讨了这两种类型的衍生债权，并评估了它们对股东的价值。对股东追偿的一个重要限制是最高法院最近重申的有关反射损失的原则。本章根据这一发展考虑目前的情况。
{"title":"20. The derivative claim and the rule in Foss v Harbottle","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0020","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0020","url":null,"abstract":"This chapter discusses further aspects of shareholder remedies, namely the common law multiple derivative claim; derivative claims under Companies Act 2006 (CA 2006), Part 11; the reflective loss principle; personal actions at common law; and specific statutory rights under the CA 2006. At common law, a shareholder aggrieved by a breach of duty by a director could bring a derivative claim on behalf of the company, as an exception to the rule in Foss v Harbottle. That common law claim now remains as a common law multiple derivative claim whereas the ‘ordinary’ derivative claim now is a statutory claim under CA 2006, Part 11. This chapter explores both types of derivative claim and assesses their value to shareholders. An important constraint on shareholder recovery is the principle governing reflective loss which has recently been restated by the Supreme Court. This chapter considers the current position in the light of that development.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"244 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74052281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0002
B. Hannigan
This chapter outlines the statutory framework of company law and the reforms put forward by the Company Law Review which were implemented by the Companies Act 2006 (CA 2006). Registered companies in the UK are governed by the CA 2006 and its predecessors. The remainder of the chapter covers the European framework of company law considering the harmonisation programme, simplification measures, and the modernisation Directives. The chapter outlines the impact of EU initiatives in areas such as corporate reporting, corporate governance, restructuring, and mobility. Freedom of establishment for companies is discussed with the relevant ECJ case law. A brief discussion of the European Company is included.
{"title":"2. The framework of company law","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0002","url":null,"abstract":"This chapter outlines the statutory framework of company law and the reforms put forward by the Company Law Review which were implemented by the Companies Act 2006 (CA 2006). Registered companies in the UK are governed by the CA 2006 and its predecessors. The remainder of the chapter covers the European framework of company law considering the harmonisation programme, simplification measures, and the modernisation Directives. The chapter outlines the impact of EU initiatives in areas such as corporate reporting, corporate governance, restructuring, and mobility. Freedom of establishment for companies is discussed with the relevant ECJ case law. A brief discussion of the European Company is included.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"122 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74541280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0015
B. Hannigan
This chapter considers directors’ liabilities on a company going into insolvency. Redress for breach of duty by directors is available through summary action for misfeasance (IA 1986, s 212), fraudulent trading (ss 213, 246ZA), and wrongful trading (ss 214, 246ZB). The scope of these provisions is considered in detail together with the relevant case law. Wrongful trading is potentially a valuable remedy but it is somewhat underused. It may be advantageous instead to challenge certain transactions by the directors prior to insolvency; for example, as transactions at an undervalue (s 238) or preferences (s 239). More broadly, the overall conduct of the directors is reviewed in order to determine whether disqualification is appropriate on the grounds, usually, that they are unfit. All of these matters are addressed in this chapter.
{"title":"15. Directors’ liabilities and vulnerable transactions on insolvency","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0015","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0015","url":null,"abstract":"This chapter considers directors’ liabilities on a company going into insolvency. Redress for breach of duty by directors is available through summary action for misfeasance (IA 1986, s 212), fraudulent trading (ss 213, 246ZA), and wrongful trading (ss 214, 246ZB). The scope of these provisions is considered in detail together with the relevant case law. Wrongful trading is potentially a valuable remedy but it is somewhat underused. It may be advantageous instead to challenge certain transactions by the directors prior to insolvency; for example, as transactions at an undervalue (s 238) or preferences (s 239). More broadly, the overall conduct of the directors is reviewed in order to determine whether disqualification is appropriate on the grounds, usually, that they are unfit. All of these matters are addressed in this chapter.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"94 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87013685","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0007
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines how company law governs maintenance of a company’s share capital, with emphasis on the distinction between private and public companies. It also discusses various ways in which shareholders might legally receive funds (‘distributions’) from the company, including issuance of shares and payment of shares in kind (that is, goods, property, or services rather than in cash). The relevance of the nominal value of shares issued to shareholders, the issue of paying dividends to shareholders, and disguised return of capital to shareholders are considered as well. The chapter also examines two other means of returning funds to shareholders, reduction of share capital and redemption or purchase by a company of its own shares, before concluding with an assessment of the prohibition and the exceptions concerning the issue of financial assistance for the acquisition of shares in a public company.
{"title":"7. Share capital","authors":"A. Dignam, J. Lowry","doi":"10.1093/HE/9780198811831.003.0007","DOIUrl":"https://doi.org/10.1093/HE/9780198811831.003.0007","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines how company law governs maintenance of a company’s share capital, with emphasis on the distinction between private and public companies. It also discusses various ways in which shareholders might legally receive funds (‘distributions’) from the company, including issuance of shares and payment of shares in kind (that is, goods, property, or services rather than in cash). The relevance of the nominal value of shares issued to shareholders, the issue of paying dividends to shareholders, and disguised return of capital to shareholders are considered as well. The chapter also examines two other means of returning funds to shareholders, reduction of share capital and redemption or purchase by a company of its own shares, before concluding with an assessment of the prohibition and the exceptions concerning the issue of financial assistance for the acquisition of shares in a public company.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85929653","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0021
B. Hannigan
This chapter considers the statutory rules governing share capital requirements, especially the rules governing allotment of shares, payment for shares, and capital raising. Share capital rules are predominantly statutory and this chapter looks at the statutory framework on allotment including the authority of the directors to allot shares, the need for rights issues; the ability to accept a non-cash consideration; and the prohibitions on various types of consideration, in the case of public companies. Minimum capital requirements and the need to avoid issuing at a discount are considered. A key issue for public companies is whether to make an offer of their shares to the public or seek to have their shares traded on a public market. The regulatory framework for public offers of shares, essentially requiring a prospectus, is considered.
{"title":"21. Share capital—capital raising and payment","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0021","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0021","url":null,"abstract":"This chapter considers the statutory rules governing share capital requirements, especially the rules governing allotment of shares, payment for shares, and capital raising. Share capital rules are predominantly statutory and this chapter looks at the statutory framework on allotment including the authority of the directors to allot shares, the need for rights issues; the ability to accept a non-cash consideration; and the prohibitions on various types of consideration, in the case of public companies. Minimum capital requirements and the need to avoid issuing at a discount are considered. A key issue for public companies is whether to make an offer of their shares to the public or seek to have their shares traded on a public market. The regulatory framework for public offers of shares, essentially requiring a prospectus, is considered.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"115 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83679220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0010
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines derivative action as a means of safeguarding minority shareholders against abuses of power and its implications for the principle of majority rule. It begins by analysing the rule in Foss v Harbottle (1843), which translates the doctrine of separate legal personality, the statutory contract, the ‘internal management principle’, and the principle of majority rule into a rule of procedure governing locus standi (that is, who has standing to sue), as well as the exceptions to that rule. It then considers various types of shareholder actions, including personal claims, representative actions (group litigation), and derivative claims. It also discusses derivative claims under the Companies Act 2006, with emphasis on the two-stage process of the application for permission to continue a derivative claim. The chapter concludes by assessing bars to a derivative action, together with liability insurance and qualifying third party indemnity provisions.
核心文本系列的标题将读者直接带到主题的核心，为各个层次的学生提供集中，简洁和可靠的指南。本章探讨了派生诉讼作为保护少数股东不受权力滥用的一种手段及其对多数决原则的影响。本文首先分析Foss v Harbottle(1843)一案的规则，该规则将独立法人人格原则、法定合同、“内部管理原则”和多数决定原则转化为管辖立场(即谁有起诉资格)的程序规则，以及该规则的例外情况。然后考虑各种类型的股东诉讼，包括个人索赔，代表诉讼(团体诉讼)和衍生索赔。本文还讨论了《2006年公司法》下的衍生索赔，重点介绍了继续衍生索赔许可申请的两阶段过程。本章最后评估了衍生诉讼的障碍，以及责任保险和合格的第三方赔偿规定。
{"title":"10. Derivative claims","authors":"A. Dignam, J. Lowry","doi":"10.1093/HE/9780198811831.003.0010","DOIUrl":"https://doi.org/10.1093/HE/9780198811831.003.0010","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines derivative action as a means of safeguarding minority shareholders against abuses of power and its implications for the principle of majority rule. It begins by analysing the rule in Foss v Harbottle (1843), which translates the doctrine of separate legal personality, the statutory contract, the ‘internal management principle’, and the principle of majority rule into a rule of procedure governing locus standi (that is, who has standing to sue), as well as the exceptions to that rule. It then considers various types of shareholder actions, including personal claims, representative actions (group litigation), and derivative claims. It also discusses derivative claims under the Companies Act 2006, with emphasis on the two-stage process of the application for permission to continue a derivative claim. The chapter concludes by assessing bars to a derivative action, together with liability insurance and qualifying third party indemnity provisions.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"103 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91297116","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/he/9780198722861.003.0024
B. Hannigan
Winding up or liquidation is the process by which the assets of the company are collected in and realised. This chapter concentrates on the winding up of insolvent companies. The discussion covers: voluntary winding up; compulsory winding up; consequences of the winding-up order; the role and powers of a liquidator; the anti-deprivation rule, proof of debts, and set-off; the order of distribution; and dissolution of the company. The chapter considers the differing types of winding up and, in particular, the ability to have a company wound up where it is unable to pay its debts. It examines the role of the liquidation in realising assets and making distributions to creditors. It considers in detail the order of distribution and the priority accorded to creditors including HMRC (following the expansion of preferential debts), floating chargeholders and unsecured creditors.
{"title":"24. Liquidation and dissolution—winding up the insolvent company","authors":"B. Hannigan","doi":"10.1093/he/9780198722861.003.0024","DOIUrl":"https://doi.org/10.1093/he/9780198722861.003.0024","url":null,"abstract":"Winding up or liquidation is the process by which the assets of the company are collected in and realised. This chapter concentrates on the winding up of insolvent companies. The discussion covers: voluntary winding up; compulsory winding up; consequences of the winding-up order; the role and powers of a liquidator; the anti-deprivation rule, proof of debts, and set-off; the order of distribution; and dissolution of the company. The chapter considers the differing types of winding up and, in particular, the ability to have a company wound up where it is unable to pay its debts. It examines the role of the liquidation in realising assets and making distributions to creditors. It considers in detail the order of distribution and the priority accorded to creditors including HMRC (following the expansion of preferential debts), floating chargeholders and unsecured creditors.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"9 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84195202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0009
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on the rights and liabilities of a shareholder which are the incident of the general nature of a share, as well as his particular rights and liabilities by virtue of owning a particular type or class of share. It first considers the legal nature of a shareholding and the different types of share capital and typical class rights of a shareholder, as well as the statutory procedure required of a company before it can effect a variation of shareholders’ class rights. Examples of classes of shares are then given, and preferential rights attached to preference shares are discussed. The chapter concludes by looking at European Union initiatives on shareholders’ rights.
{"title":"9. Classes of shares and variation of class rights","authors":"A. Dignam, J. Lowry","doi":"10.1093/HE/9780198811831.003.0009","DOIUrl":"https://doi.org/10.1093/HE/9780198811831.003.0009","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on the rights and liabilities of a shareholder which are the incident of the general nature of a share, as well as his particular rights and liabilities by virtue of owning a particular type or class of share. It first considers the legal nature of a shareholding and the different types of share capital and typical class rights of a shareholder, as well as the statutory procedure required of a company before it can effect a variation of shareholders’ class rights. Examples of classes of shares are then given, and preferential rights attached to preference shares are discussed. The chapter concludes by looking at European Union initiatives on shareholders’ rights.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"1223 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75665258","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0017
B. Hannigan
Shareholders typically exercise their voting power during the general meetings of the company, in the form of resolutions passed at such meetings. For private companies, the expectation is that they will not hold meetings, but use written resolutions. This chapter considers the mechanisms for meetings for public and traded companies. The chapter discusses voting entitlement, proxies, and corporate representatives. It considers the main types of resolutions, especially written resolutions for private companies, as well as ordinary and special resolutions. Meeting procedures including notice and convening requirements are discussed. There is a detailed look at the important Duomatic principle of informal shareholder assent in place of a resolution.
{"title":"17. Decision-making and company meetings","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0017","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0017","url":null,"abstract":"Shareholders typically exercise their voting power during the general meetings of the company, in the form of resolutions passed at such meetings. For private companies, the expectation is that they will not hold meetings, but use written resolutions. This chapter considers the mechanisms for meetings for public and traded companies. The chapter discusses voting entitlement, proxies, and corporate representatives. It considers the main types of resolutions, especially written resolutions for private companies, as well as ordinary and special resolutions. Meeting procedures including notice and convening requirements are discussed. There is a detailed look at the important Duomatic principle of informal shareholder assent in place of a resolution.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73285730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0006
B. Hannigan
This chapter discusses the appointment and removal of directors. Directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company. The chapter considers three classes of directors: the de jure director, the de facto director, and the shadow director. It identifies the characteristics of each category and the liabilities which attach in the event that someone is classed as being a director. It also considers whether fiduciary duties are owed by shadow directors. The position of corporate directors is also considered. In addition, the remuneration of directors is addressed.
{"title":"6. Corporate governance—board structure and shareholder engagement","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0006","url":null,"abstract":"This chapter discusses the appointment and removal of directors. Directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company. The chapter considers three classes of directors: the de jure director, the de facto director, and the shadow director. It identifies the characteristics of each category and the liabilities which attach in the event that someone is classed as being a director. It also considers whether fiduciary duties are owed by shadow directors. The position of corporate directors is also considered. In addition, the remuneration of directors is addressed.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"2013 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73703003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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