The Latest Corporate Law Cases 2019

30/08/2019
The latest corporate law cases

(2019)
5th September 2019
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The latest corporate law cases

(2019)
The law as stated during this webinar is
up to date as of 29th August 2019
LexisNexis® Confidential 2
Introduction
1
30/08/2019
Stuart Evans
Partner
BLM
Louise Norbury-Robinson
Senior Associate
Walker Morris LLP
Agenda
1. SPA Indemnity Claims and Service of Notices

2. Deeds – When Black Letter Law Meets Tech
3. Commercial Contract Disputes – Implying Terms
4. Dividends – Are They Paying?
5. Anti/No-Oral Variation Clauses
6. Shareholders – Unfair Prejudice: The Latest
7. Agreements to Agree
8. Shareholders – Getting Dragged Along
9. Parent Company Liability for Overseas Subsidiaries
10. Fiduciary Duties – Will the Courts Correct Injustice?
Latest Corporate Law cases (2019)

1. SPA Indemnity Claims and Service of
Notices
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SPA Indemnity claims and Service of Notices (1)
Teoco UK v Aircom Jersey [2018] EWCA Civ 23
• Court to determine validity of warranty claim notification.
• Notice requirement: “setting out reasonable details of the claim (including

the grounds on which it is based and the Purchaser’s good faith estimate of
the amount of the claim)”.
• A compliant notification of warranty claim should identify the particular

warranty/ies alleged to have been breached.
• Applied: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd

[1997] AC 749, HL; Hopkinson v Towergate Financial (Group) Limited [2018]
EWCA Civ 274.
Hopkinson v Towergate Financial (Group) Limited [2018] EWCA Civ 274
• Concerned a buyer's wish to claim under an indemnity for the mis-selling of

shares in a financial services company following an FCA investigation.
• Seller argued the relevance clause did not include mis-selling claims.
• "The Purchaser shall not make any Claims against the Warrantors nor shall
the Warrantors have any liability in respect of any matter or thing unless
notice in writing of the relevant matter or thing (specifying the details and
circumstances giving rise to the Claim or Claims and an estimate in good
faith of the total amount of such Claim or Claims) is given to all the
Warrantors as soon as possible and in any event prior to...“ [emphasis added]
• Court found notice to be valid.
Zayo Group International Ltd v Michael Ainger & Ors [2017] EWHC 2542
(Comm)
• Notification of warranty claim dispute.
• When the courier arrived at the address of one of the defendants, he

discovered that she no longer lived there and left without leaving the
notice. The deadline for service expired later that day, so the claimant had
no opportunity to further attempt service.
• Notice found to be invalid.
• Remember: who, when and how?
3
30/08/2019

2.Deeds: when black letter law meets
Tech
Deeds – when black letter law meets Tech (1)
Katara Hospitality v Guez
• Completion meeting in Qatar, D’s and lawyers not present
• V appointed attorney by D’s under two POAs, drafted by US lawyer and

described as POA but not expressed to be by way of deed nor executed as
deeds
• Powers under POA did not authorise attorney to enter into transaction on
different commercial terms to those agreed
• PG drafted on the day and executed as a deed by V for himself and as

attorney for D’s, but only signature for D2 witnessed
• PG covered liability for difference between purchase price and value of

dividends received by C over 8 years
• C sued Ds for 65 million euros
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• Section 1(2) Law of Property (Miscellaneous Provisions) Act 1989:
• “An instrument shall not be a deed unless—

o (a) it makes it clear on its face that it is intended to be a deed by the
person making it or, as the case may be, by the parties to it (whether by
describing itself as a deed or expressing itself to be executed or signed as a
deed or otherwise); and
o (b) it is validly executed as a deed

• (i) by that person or a person authorised to execute it in the name or on
behalf of that person, or
• (ii) by one or more of those parties or a person authorised to execute it
in the name or on behalf of one or more of those parties.”
• POAs not valid – not expressed to be by way of deed, deemed appointments

in writing
• PG not contemplated when POAs signed, authority was to enable authorised

person to re-sign documents agreed by Ds
• Only one signature on PG attested – joint liability presumed, so no party to

PG liable
• Meet the face value requirement for a deed
• Attorney’s authority must sit squarely within four corners of authority

conferred by PoA
• In the absence of election between joint, several and joint and several
liability the presumption is joint liability
• Care with cross border transactions, empty chairs and electronic executions
5
30/08/2019
Liberty Partnership v Tancred
• If the LPMPA 1989 is satisfied, is a deed a “specialty” for the purpose of the
Limitation Act 1980?
• IFA business sold 14/11/07, sale document executed as a deed
• SPA - 18 months contractual limitation period for warranty claims, save for
“wilful concealment”
• Breaches alleged, C issued proceedings 14/11/13, subsequent amendments
• Limitation Act 1980, s.8(1): “An action upon a specialty shall not be brought
after the expiration of twelve years from the date on which the cause of
action accrued.”
• Deed executed under seal is a specialty
• Seal no longer required for individual under LPMPA 1989
• Intent to import special solemnity of deed
• 12 year limitation period – wilfully concealed matters not subject to 18

month cap

3. Implying Terms (commercial contracts)
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Implying Terms (1)
Bou Simon v BGC Brokers LLP [2018] EWCA Civ 1525
• The contract expressly stated that Mr Bou-Simon would repay a loan if,
within a certain time, he ceased to be a partner in the business.
• Mr Bou-Simon was only an employee and left the business before ever
becoming a partner.
• First instance: trial judge implied a term requiring repayment of the loan.
• Court of Appeal found trial judge had fallen into the trap of implying a term
with the benefit of hindsight.
• Proper test applied (see next slide - M&S v BNP [2015] UKSC).
Implying Terms (2)
M&S v BNP [2015] UKSC
• Proper approach:
o Terms will not be implied lightly.
o Consider the presumed intention of the parties at the time.
o Business efficacy: whether, without the term, the contract simply does
not work, either commercially or practically.
o Carefully drafted contract and/or with legal advice?
o Must be obvious; capable of clear expression; and must not contradict

any express term of the contract.
Implying Terms (3)
(ctd) Bou Simon v BGC Brokers LLP [2018] EWCA Civ 1525
• Clarified
o Look to express terms first.
o Only if a reading of the express terms reveals that implication of a term is
necessary to give business efficacy to the contract should the court go on,
at all, to consider whether to imply a particular term.
• Deleted Terms?
o Deleted terms should only be taken into account where express terms
are ambiguous.
o The fact that a similar term has been deleted cannot be relied on to rebut
an implication.
o Deleted terms are only admissible if the form part of the relevant
surrounding circumstances (as opposed to part of negotiations).
7
30/08/2019
Implying Terms (4)
Wells v Devani [2019] UKSC 4
• A new ‘spin’ to the rules…
o Lord Kitchen stated that if the contract did not contain the particular
term in dispute, "then a term to that effect must be implied to make the
contract work and to give it practical and commercial coherence [and i]n
carrying out this exercise of implication the court would be reading into
the contract that which its nature implicitly requires. Put another way,
to leave Mr Wells [a property vendor] without any obligation to pay Mr
Devani [a real estate agent] would be completely inconsistent with the
nature of their relationship (emphasis added).“
• Introduction of an additional discretion for the Court?
Implying Terms (5)
Braganza case [2015] UKSC 17
• Significant departure from precedent:
o effectively implied into a commercial contract a new ‘duty’ akin to the

public law concept of ‘Wednesbury reasonableness’.
• Potential to shift the balance of power between the parties and for
significant uncertainty?
Implying Terms (6)
UBS v Rose [2018] EWHC 3137 (Ch)
• Media attention
• The claimant had provided a secured loan, and the mortgage contract
contained an absolute discretion to require payment in full on three months’
notice.
o Notice given - fixed charge receivers appointed and possession
proceedings began.
o The defendant argued that the claimant had breached an implied fetter
(akin to a Braganza duty) on the bank’s discretion to call-in the loan.
• High Court:
o No reasonable prospect of success.
o Braganza duties do not apply to every form of contractual power.
8
30/08/2019

4. Dividends: are they paying?
Dividends: are they paying? (1)
Global Corporate v Hale (CA)
• Two shareholders in company running performance vehicle tuning centre
• R, shareholder, got small salary and dividend every month
• If there were insufficient distributable reserves to declare dividends at end

of financial year, dividends reversed and re-characterised as salary
• £23.5K “interim” dividends paid to R, company went into liquidation
• Assignee claimed repayment for breach of fiduciary duty/misfeasance as

dividends unlawful under s.830 Companies Act 2006:
• “(1) A company may only make a distribution out of profits available for the
purpose.
• (2) A company's profits available for distribution are its accumulated,

realised profits, so far as not previously utilised by distribution or
capitalisation, less its accumulated, realised losses, so far as not previously
written off in a reduction or reorganisation of capital duly made.”
9
30/08/2019
• R self-represented
• Judge agreed dividends unlawful, but no final decision made to pay as a

dividend, any misfeasance liability set off by way of quantum meruit
• On appeal, judge’s decision reversed - R had admitted that sums paid as

dividends, declared to HMRC as dividends, distributions under s.830 CA 06
when made. Mismatch with remuneration as an office holder
• Quantum meruit not pleaded, not agreed by board, unliquidated claim
• Arrangement with R not uncommon as tax efficient but payments cannot be

re-characterised
• Judges should not make decision on cases that have not been pleaded, or
over-indulge unrepresented party through e.g. leading questions in their
capacity as a witness.
• Useful for companies, auditors and insolvency practitioners
BTI 2014 LLC v Sequama SA
• S.423 Insolvency Act 1986:

• “(1) This section relates to transactions entered into at an undervalue; and a
person enters into such a transaction with another person if—
• (a) he makes a gift to the other person or he otherwise enters into a
transaction with the other on terms that provide for him to receive no
consideration;
• …(c) he enters into a transaction with the other for a consideration the value
of which, in money or money's worth, is significantly less than the value, in
money or money's worth, of the consideration provided by himself.
• (2) Where a person has entered into such a transaction, the court may…
make such order as it thinks fit for—(a) restoring the position to what it
would have been if the transaction had not been entered into, and
• (b) protecting the interests of persons who are victims of the transaction.”
10
30/08/2019
• S.172(1)-(3) Companies Act 2006 - Duty to promote the success of the

company
• (1) A director of a company must act in the way he considers, in good faith,
would be most likely to promote the success of the company for the benefit
of its members as a whole…
• (3) The duty imposed by this section has effect subject to any enactment or
rule of law requiring directors, in certain circumstances, to consider or act in
the interests of creditors of the company.
• A ceased to trade, with contingent liability for foreign environmental claims

to B
• S owed inter company debt to A
• A paid dividends to S to set off that debt
• Declarations of solvency completed
• B replaced A and claimed breach of duty by directors of A and against S as

constructive trustee, B claimed dividend under s.423 IA 1986
• Judgment for B under s.423 IA 1986, dividend was within that provision and
otherwise satisfied
• Insolvency did not have to be proved, content that A acted to put assets
beyond reach of creditors
• B to receive dividend, not for main body of creditors
11
30/08/2019
• Directors of A had a duty to have regard to creditors’ interests when they

knew or should have known that A was likely to become insolvent
• Likely meant probable, a real risk of insolvency insufficient
• Test not met at time of dividend payment
• Each case turns on its own facts
• When duty to creditors overrides duty to shareholders left open

5. Anti / No-Oral Variation clauses
Anti/No-oral variation Clauses (1)
Contractual red herring or Legitimate device?
• MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2016] EWCA
Civ 553
o 2016 decision (Court of Appeal): no legal effect. BUT…
• …Unanimously overturned in the Supreme Court appeal ([2018] UKSC 24)
• Clauses which expressly prohibit parties from varying contracts unless they
comply with specified requirements (usually that amendments be made in
writing and signed by both parties) are very common in modern commercial
contracts. But are they effective?
• MWB Business Exchange v Rock Advertising: the autonomy of commercial

contracting parties to agree whatever they wish and however they wish
(within the law and subject to public policy considerations) is the most
important consideration, whereas anti-variation clauses are effectively a
restriction on the fundamental principle of freedom of contract. But….
12
30/08/2019
Anti/No-oral variation Clauses (2)
…Supreme Court has performed a U-turn (same case: MWB)
• Supreme Court: anti-variation clauses valid after all:

o also relies on doctrine of freedom of contract, but concludes the law of
contract does not prevent parties from agreeing an anti-variation clause.

6. Shareholders: Unfair Prejudice - the
latest
Shareholders: Unfair Prejudice – the latest (1)
Cool Seas v Interfish
• N was a company that was created following allegations of illegal (black)

fishing by predecessor company
• N had 3 directors from IF (majority shareholder), 2 directors from CS

(minority shareholder), including A
• Shareholders Agreement – reserved matters, including CS’ consent required

for the commencement of proceedings
13
30/08/2019
• CS complained of not participating in management of N and threatening of

proceedings against A/CS for breach of duty and breach of warranty
• CS issued unfair prejudice petition as minority shareholder
• IF as majority shareholder brought counter petition based upon conduct and

breaches and inability to get CS’ consent to take proceedings
• S.994 Companies Act 2006
• “(1) A member of a company may apply to the court by petition for an order
under this Part on the ground–(a) that the company's affairs are being or
have been conducted in a manner that is unfairly prejudicial to the interests
of members generally or of some part of its members (including at least
himself), or
• (b) that an actual or proposed act or omission of the company (including an

act or omission on its behalf) is or would be so prejudicial.”
• CS petition failed – N was not a quasi partnership and it did not have a
legitimate expectation of participation in management
• IF petition succeeded – even though it was the majority shareholder, due to

Sh Agt IF’s voting rights were not aligned with its shareholding, disrupting its
ability to manage N
• Conduct of A as CS nominee director attributed to CS for the purpose of

s.994 Companies Act 2006
14
30/08/2019
• Wide discretion under s.996(1) – the court “may make such order as it thinks
fit for giving relief in respect of the matters complained of”.
• The court may regulate company’s affairs, require the company to do or not
do something, authorise proceedings to be brought by the company, not to
change articles without leave and provide for the purchase of shares by
other members or the company itself (s.996(2))
• Ordered account and inquiry against A and CS
Last Lion Holdings v Moore Freres
• C owned 30% of L with 1 nominee director, D owned 70% of L with 3

nominee directors
• 2017 – D tried to sell C’s shares to M, without authority and without C’s
knowledge. D then offered to buy C’s shares for a lower value, secretly to sell
on to M at a profit
• 2018 – M approached C for a direct sale. D set up a committee which

disapproved of the sale.
• D stated that M’s controller had been involved in insider trading
• C’s sale to M blocked
• S.171 Companies Act 2006:
• “A director of a company must–
o (a) act in accordance with the company's constitution, and
o (b) only exercise powers for the purposes for which they are conferred.”
15
30/08/2019
• Court found that D was in breach of ss.171-172 Companies Act 2006. D had
not acted within its powers and put its own interests above L’s shareholders
as a whole. D did not act in good faith and but for this the sale would have
been approved
• Insider trading reference was 8 years old, minor and not something that
concerned D in 2017
• D’s board ordered to approve transfer of C’s shares to M, along with the
right for M to appoint nominee director
• Lessons?
• Case decided on its facts, do not assume that every share blockage will
necessarily constitute unfair prejudice
• Court would have been prepared to order an alternative share purchase or

damages if C’s sale to M failed
• Flexible approach, not adopting the option of a buy-out by the majority

shareholder, or sending the decision back to the board

7. Agreements to Agree
16
30/08/2019
Agreements to Agree
Morris v Swanton Care & Community Ltd [2018]
• Reminder of the dangers of leaving matters to be agreed at a later date:
o SPA: “Mr Morris shall have the option for a period of 4 years from
Completion and following such period such further period as shall
reasonably be agreed between Mr Morris and the Buyer to provide the
following services[…..]” (the Consultancy Services).
o The High Court judge held that while Mr Morris had an enforceable right
to provide Consultancy Services during the initial four-year period, he did
not have an enforceable right to provide Consultancy Services during any
further period because the agreement was effectively an agreement to
agree.

8. Shareholders: getting dragged along
Shareholders: getting dragged along (1)
Cunningham v Resourceful Land
• Drag along clause
• Syndicate had 300 shares in RLL, C had 270
• Syndicate approved share swap with W, so that W would become the sole
shareholder of RLL
• Shareholders Agreement, with drag along clause: If Syndicate "wish to

transfer all their interest in Ordinary shares… to a bona fide arm's length
purchaser (Third Party Purchaser) the [Syndicate Shareholders] have the
option to require all other Shareholders… to sell and transfer all their Shares
upon the same terms to the Third-Party Purchaser or as the Third-Party
Purchaser shall direct..."
17
30/08/2019
• If shareholders failed to execute transfers, then upon RLL receiving the

purchase monies “or any other consideration payable for the shares”, the
Syndicate may execute transfers.
• Share swap took place, C sought to rectify the register at Companies House,
claiming that drag along clause only applied to cash transactions and sale not
at arm’s length
• Court disagreed – “any other consideration” covered cash and share

transactions, W was bona fide purchaser and transaction was arm’s length at
the time of sale
• Lessons?
• Check drag along provisions to see if they cover cash and paper

9. Parent company liability for overseas
subsidiaries
18
30/08/2019
Parent company liability for overseas subsidiaries
Lungowe case
• Whether, and how, the Zambian claimants could make their pollution
problem a case for the UK courts, and a liability for the UK parent company.
• 2017 Court of Appeal:

o 1) Duty of Care? (Caparo v Dickman)
o 2) Additional factors (Chandler v Cape plc [2012] EWCA Civ 525)
• UK parent raised jurisdictional appeal to Supreme Court on 4 grounds:

o 1) Abuse of EU Law
o 2) no real triable issue against the parent
o 3) England not the proper place to bring the claim
o 4) no real risk of the claimant not obtaining justice in Zambia
• The appeal failed on (almost) all 4 grounds.


10. Fiduciary Duties: will the Court
correct Injustice?
Fiduciary Duties: will the Court correct Injustice? (1)
Parr v Keystone Healthcare Limited
• K – owned by P and 2 other directors
• P left, holding company (H) paid for his shares
• P had set up a competitor, used confidential information and taken on an

employee of K, which would have entitled K to treat P as a bad leaver and
compulsorily acquire P’s shares for half the amount paid
• K sought relief in equity for share overpayment to be disgorged
19
30/08/2019
• P claimed that he had a fiduciary duty to K (which was breached), but H

made the payment so there would be no remedy
• Court found that K was entitled to recover the difference as a secret profit,
even though K would not have made that profit
• There was a sufficient degree of connection between P’s breach of fiduciary

duty and the receipt of the secret profit
Lessons?
• Court will seek pragmatic, equitable solutions in appropriate cases, to cure

manifest injustice
• Claim was effectively for equitable relief to strip a fiduciary of an

unauthorised profit, not a claim for damages
• Court careful to avoid criticism that equitable relief was given to an entity to
which no fiduciary duty owed (H)
Stobart Group v Tinkler
• T was substantial shareholder and ex-CEO of S
• Discussed replacing Chairman of S with majority shareholders, sent a letter

to shareholders on this topic and shared confidential information with a
third party
• Board of S set up committee and decided to dismiss T
• S transferred shares to EBT before AGM, where Chairman and T were re-
elected
• T then removed by unanimous vote of the Board
20
30/08/2019
• T challenged the dismissal, claiming that the AGM had voted for him to
continue and challenging transfer to EBT
• Court found the dismissal was valid, T had been dismissed on the grounds of
breaches of fiduciary duty, service agreement and implied duties of trust,
confidence and fidelity and board had not acted for an improper purpose
• T should not have briefed against the board of S, shared confidential

information or written to shareholders. Grievances should have been raised
at board level or in the open forum of a shareholders meeting
• Transfer of shares to EBT was manipulative and voidable. However, the EBT
had acted independently and deliberated properly over the decision to re-
appoint chairman
• Post dismissal announcement by board was inappropriate
• Board could override the decision made at the AGM
Contact Us:
Stuart Evans
Partner
BLM Law
stuart.evans@blmlaw.com
0207 865 8474
Louise Norbury-Robinson
Senior Associate
Walker Morris LLP
louise.norburyrobinson@walkermorris.co.uk
0113 283 2551
21
30/08/2019
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The Latest Corporate Law Cases 2019

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The latest corporate law cases

The latest corporate law cases

1. SPA Indemnity Claims and Service of Notices

Latest Corporate Law cases (2019)

SPA Indemnity claims and Service of Notices (1)

Teoco UK v Aircom Jersey [2018] EWCA Civ 23

• Court to determine validity of warranty claim notification.

• Notice requirement: “setting out reasonable details of the claim (including

• A compliant notification of warranty claim should identify the particular

• Applied: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd

SPA Indemnity claims and Service of Notices (2)

Hopkinson v Towergate Financial (Group) Limited [2018] EWCA Civ 274

• Concerned a buyer's wish to claim under an indemnity for the mis-selling of

• Court found notice to be valid.

SPA Indemnity claims and Service of Notices (3)

• Notification of warranty claim dispute.

• When the courier arrived at the address of one of the defendants, he

• Notice found to be invalid.

• Remember: who, when and how?

Latest Corporate Law cases (2019)

Deeds – when black letter law meets Tech (1)

Katara Hospitality v Guez

• Completion meeting in Qatar, D’s and lawyers not present

• V appointed attorney by D’s under two POAs, drafted by US lawyer and

Deeds – when black letter law meets Tech (2)

• PG drafted on the day and executed as a deed by V for himself and as

• PG covered liability for difference between purchase price and value of

• C sued Ds for 65 million euros

Deeds – when black letter law meets Tech (3)

• Section 1(2) Law of Property (Miscellaneous Provisions) Act 1989:

• “An instrument shall not be a deed unless—

o (b) it is validly executed as a deed

Deeds – when black letter law meets Tech (4)

• POAs not valid – not expressed to be by way of deed, deemed appointments

• PG not contemplated when POAs signed, authority was to enable authorised

• Only one signature on PG attested – joint liability presumed, so no party to

Deeds – when black letter law meets Tech (5)

• Meet the face value requirement for a deed

• Attorney’s authority must sit squarely within four corners of authority

Deeds – when black letter law meets Tech (6)

Liberty Partnership v Tancred

• IFA business sold 14/11/07, sale document executed as a deed

• Breaches alleged, C issued proceedings 14/11/13, subsequent amendments

Deeds – when black letter law meets Tech (7)

• Deed executed under seal is a specialty

• Seal no longer required for individual under LPMPA 1989

• Intent to import special solemnity of deed

• 12 year limitation period – wilfully concealed matters not subject to 18

Latest Corporate Law cases (2019)

Implying Terms (1)

Bou Simon v BGC Brokers LLP [2018] EWCA Civ 1525

Implying Terms (2)

M&S v BNP [2015] UKSC

o Terms will not be implied lightly.

o Consider the presumed intention of the parties at the time.

o Carefully drafted contract and/or with legal advice?

o Must be obvious; capable of clear expression; and must not contradict

Implying Terms (3)

o Only if a reading of the express terms reveals that implication of a term is

surrounding circumstances (as opposed to part of negotiations).

Implying Terms (4)

Wells v Devani [2019] UKSC 4