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Derivative Claims Under UK Company Law and Some Related Provisions of German Law by Frank Wooldridge and Liam Davies

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Derivative Claims Under UK Company Law and Some Related Provisions of German Law by Frank Wooldridge and Liam Davies 22419 Amicus 90 Summer text.qxd:Text 20/9/12 12:39 Page 5 Derivative claims under UK company law and some related provisions of German law by Frank Wooldridge and Liam Davies INTRODUCTORY REMARKS an action” and that the leave of the court should be The bringing of derivative claims by the shareholders of required to continue a derivative action. The Company an English or Welsh company used to be restricted by Law Reform Steering Group made a similar reason of the application of the common law rule in Foss v recommendation regarding a simplified procedure for such Harbottle [1843] 2 Hare 461 (the position was the same in actions. This recommendation was adopted in sections Scotland). According to this rule, which was subject to 260-264 of Part 11 of the Companies Act 2006. This Act exceptions, an individual shareholder could not bring an also provided that such derivative claims could be brought action on the company’s behalf against a director who was in relation to a cause of action vested in the company and in breach of his duties to the company. It was only possible seeking relief on its behalf only with the permission of the to bring such a claim if the wrongdoing was not ratifiable or treated as such. Where an unratifiable wrong could be court. The 2006 Act further provides that derivative claims identified, a derivative action by an individual shareholder may be brought by way of a petition under section 994, might not take place where the majority of the which is concerned with unfairly prejudicial conduct of the shareholders in general meeting decided not to sue the company’s affairs. The effect of section 996(2)(c) is to wrongdoing director(s), provided that the defaulting enable the court to order a derivative claim if a petition director(s) did not control the company (Taylor v National under section 994 is brought on the grounds that the Union of Mineworkers (1985) BCLC 237). company’s affairs are being or have been conducted in a The position was similar where an independent organ of manner prejudicial to the interests of the members the company expressed itself opposed to litigation against generally, or some part thereof, is successful. It seems the wrongdoing director(s) (see Smith v Croft (No 2) 1988 unlikely that much use will be made of this procedure Ch 114). The former position in relation to derivative except where it appears unclear to the plaintiff presenting actions before the introduction of the new procedure in the petition that a derivative claim might be available. Part 11 of the Companies Act 2006, which came into force on October 1, 2007, is very well explained by H C Hirt in The present article will specifically concern itself with his excellent article, “Ratification of breaches of directors sections 260-269 of Part 11 of the Companies Act 2006. duties: the implications of the reforms proposed regarding It should be noted however that section 370 of the Act the availability of derivative actions” (24 Company Lawyer provides for a statutory claim to enforce directors’ (2004) 197.) The rules governing ratification appear to be liabilities in the event of the contravention of certain somewhat complex and uncertain in their effects: see provisions governing political donations and expenditure. E Ferran, Company Law and Corporate Finance, OUP, 1999, p143 in this sense. The provisions of the Act relating to derivative actions in Scotland included in sections 265-269 of the Companies The Law Commission made important proposals for the amendment of the law relating to the derivative action in Act 2006 are generally identical, or almost the same as its final report Shareholder Remedies (no 246, 1997) which those applicable to England and Wales or Northern Ireland recommended that there should be a “new derivative contained in sections 260-264 thereof. However they do procedure with more modern, flexible and accessible differ from the latter provisions in certain procedural criteria for determining whether a shareholder can pursue aspects. 5 Amicus Curiae Issue 90 Summer 2012 22419 Amicus 90 Summer text.qxd:Text 20/9/12 12:39 Page 6 AMBIT OF THE DERIVATIVE CLAIM UNDER THE COURT’S DISCRETION WHETHER TO PART 11 OF THE ACT (GENERAL STATUTORY APPROVE THE CONTINUANCE OF THE CLAIM) DERIVATIVE CLAIM A shareholder wishing to bring such a derivative claim As already indicated the court has to approve the has to seek the consent of the court to continue it (see continuation of the claim (see Companies Act 2006, ss 261 Companies Act 2006, s 261, or s 266 for the position in and 266 (applicable to Scotland)). It must refuse to do so Scotland; this power of the court should prevent any great in certain situations, ie where the actual breach of duty has increase in the number of derivative claims which was been authorised or ratified by the company, or where the proposed breach of duty has been ratified by it (Companies feared in the House of Lords). The court is no longer Act 2006, ss 263 (2) (b) and (c) and 268 (1)(b) and bound by the rule in Foss v Harbottle in reaching its decision, (c)(applicable to Scotland)). The court must also refuse to but it has to consider certain matters which were relevant permit the continuance of the claim where a person acting to this rule in deciding whether it is in the interests of the in accordance with his duty to promote the interests of the company for the action to be brought (see Gower and company would not seek to continue it (Companies Act Davies, Principles of Modern Company Law, 8th ed, P L Davies, 2006, s 263(2)(a) and 268(1)(a) (applicable to Scotland); Sweet and Maxwell, 2008, p 615, in this sense). The and see also the judgment of David Donaldson QC (sitting company must be made a defendant to the claim in as a Deputy High Court Judge) in Langley Ward Ltd v Trevor accordance with rule 19.9(3) of the Civil Procedure Rules. & Anor [2011] EWHC 1893 (Ch)). The court has to be The derivative claims which may be brought under Part satisfied of the latter situation, and does not appear bound by the views of the shareholder who initiates proceedings. 11 of the Companies Act 2006 are claims arising from a proposed act or omission involving negligence, default, If the above negative requirements are satisfied the court breach of duty or breach of trust by a director of the has to take further considerations into account before company. The cause of action may be against a director or deciding whether to permit the derivative claim to another person (Companies Act 2006, ss 260(3) and continue (Companies Act 2006 ss 263(3) and 268(2) 265(3) and (4) (applicable to Scotland)); such a person will (applicable to Scotland)). These considerations do not have been involved with the director’s alleged breach of appear to be exhaustive. The court must consider the importance that a person acting in accordance with section duties, but he or she may be sued separately (or together 172 (duty to promote success of the company) would with the director). attach to continuing the action. This test is similar to the According to sections 260(5) and 265(7) of the Act, preliminary negative test already mentioned. The court is directors for the purpose of Part 11 include former and further required to take into account whether the shadow directors. Shadow directors are defined in section shareholder seeking to continue the action is acting in good 251(1) of the Companies Act as persons with whose faith. In its earlier jurisprudence on derivative actions, it directions or instructions the directors of the company are has usually not permitted such an action to continue where accustomed to act. Former directors remain subject to two the claim has been brought for an ulterior purpose – Barrett of the seven general duties imposed on directors by v Duckett [1995] 1 BCLC 243 and Portfolios of Distinction v sections 171-177 of the Act (Companies Act 2006, s 170 Laird [2004] 2 BCLC 741 – or where there is another satisfactory remedy, for example placing the company in (2)). These are to avoid conflicts of interest as regards the liquidation. In the case of Franbar Holdings v Patel (2009) 1 exploitation of any property, information or opportunity of BCLC I, the existence of an alternative remedy under which they become aware at a time when they were section 994 of the Companies Act 2006 was an important directors; and the duty not to accept benefits from third factor in the court’s decision to refuse permission to parties as regards things done or omitted by them before continue a derivative claim (see Mayson, French and Ryan, they ceased to be directors. The position of shadow Company Law, 26th ed, OUP 2009 at p 553 for a short directors is somewhat uncertain (see Gower and Davies, discussion of this case. It has been referred to in a number pp 485-87). According to section 260(4) of the Act it is of subsequent decisions including the Opinion of Lord immaterial whether the cause of action arose before or Glennie in the Petition of A M Wishart [2009] CSOH 20 after the person seeking to bring or continue the derivative given in the Outer House of the Scottish Court of Session, claim became a member of the company. Section 265(5), as well as in certain English cases).
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