Учебный год 22-23 / Critical Company Law

374Critical company law

(6)For the avoidance of circularity in the application of section 252 (meaning of “connected person”) –

(a)a body corporate with which a director is connected is not treated for the purposes of this section as connected with him unless it is also connected with him by virtue of subsection (2)(c) or (d) of that section (connection as trustee or partner); and

(b)a trustee of a trust the beneficiaries of which include (or may include) a body corporate with which a director is connected is not treated for the purposes of this section as connected with a director by reason only of that fact.

255Director “controlling” a body corporate

(1)This section defines what is meant by references in this Part to a director “controlling” a body corporate.

(2)A director of a company is taken to control a body corporate if, but only if –

(a)he or any person connected with him –

(i)is interested in any part of the equity share capital of that body, or

(ii)is entitled to exercise or control the exercise of any part of the voting power at any general meeting of that body, and

(b)he, the persons connected with him and the other directors of that company, together –

(i)are interested in more than 50% of that share capital, or

(ii)are entitled to exercise or control the exercise of more than 50% of that voting power.

(3)The rules set out in Schedule 1 (references to interest in shares or debentures) apply for the purposes of this section.

(4)References in this section to voting power the exercise of which is controlled by a director include voting power whose exercise is controlled by a body corporate controlled by him.

(5)Shares in a company held as treasury shares, and any voting rights attached to such shares, are disregarded for the purposes of this section.

(6)For the avoidance of circularity in the application of section 252 (meaning of “connected person”) –

(a)a body corporate with which a director is connected is not treated for the purposes of this section as connected with him unless it is also connected with him by virtue of subsection (2)(c) or (d) of that section (connection as trustee or partner); and

(b)a trustee of a trust the beneficiaries of which include (or may include) a body corporate with which a director is connected is not treated for the purposes of this section as connected with a director by reason only of that fact.

256Associated bodies corporate

For the purposes of this Part –

(a)bodies corporate are associated if one is a subsidiary of the other or both are subsidiaries of the same body corporate, and

Appendix B: General duties of directors (ss 170–259) 375

(b)companies are associated if one is a subsidiary of the other or both are subsidiaries of the same body corporate.

257References to company’s constitution

(1)References in this Part to a company’s constitution include –

(a)any resolution or other decision come to in accordance with the constitution, and

(b)any decision by the members of the company, or a class of members, that is treated by virtue of any enactment or rule of law as equivalent to a decision by the company.

(2)This is in addition to the matters mentioned in section 17 (general provision as to matters contained in company’s constitution).

General

258Power to increase financial limits

(1)The Secretary of State may by order substitute for any sum of money specified in this Part a larger sum specified in the order.

(2)An order under this section is subject to negative resolution procedure.

(3)An order does not have e ect in relation to anything done or not done before it comes into force.

Accordingly, proceedings in respect of any liability incurred before that time may be continued or instituted as if the order had not been made.

259Transactions under foreign law

For the purposes of this Part it is immaterial whether the law that (apart from this Act) governs an arrangement or transaction is the law of the United Kingdom, or a part of it, or not.

Appendix C

Derivative claims

Sections 260–264

PART 11

D

CHAPTER 1

D E W N I

260Derivative claims

(1)This Chapter applies to proceedings in England and Wales or Northern Ireland by a member of a company –

(a)in respect of a cause of action vested in the company, and

(b)seeking relief on behalf of the company.

This is referred to in this Chapter as a “derivative claim”.

(2)A derivative claim may only be brought –

(a)under this Chapter, or

(b)in pursuance of an order of the court in proceedings under section 994 (proceedings for protection of members against unfair prejudice).

(3)A derivative claim under this Chapter may be brought only in respect of a cause of action arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of the company.

The cause of action may be against the director or another person (or both).

(4)It is immaterial whether the cause of action arose before or after the person seeking to bring or continue the derivative claim became a member of the company.

(5)For the purposes of this Chapter –

(a)“director” includes a former director;

(b)a shadow director is treated as a director; and

(c)references to a member of a company include a person who is not a member but to whom shares in the company have been transferred or transmitted by operation of law.

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261Application for permission to continue derivative claim

(1)A member of a company who brings a derivative claim under this Chapter must apply to the court for permission (in Northern Ireland, leave) to continue it.

(2)If it appears to the court that the application and the evidence filed by the applicant in support of it do not disclose a prima facie case for giving permission (or leave), the court –

(a)must dismiss the application, and

(b)may make any consequential order it considers appropriate.

(3)If the application is not dismissed under subsection (2), the court –

(a)may give directions as to the evidence to be provided by the company, and

(b)may adjourn the proceedings to enable the evidence to be obtained.

(4)On hearing the application, the court may –

(a)give permission (or leave) to continue the claim on such terms as it thinks fit,

(b)refuse permission (or leave) and dismiss the claim, or

(c)adjourn the proceedings on the application and give such directions as it thinks fit.

262Application for permission to continue claim as a derivative claim

(1)This section applies where –

(a)a company has brought a claim, and

(b)the cause of action on which the claim is based could be pursued as a derivative claim under this Chapter.

(2)A member of the company may apply to the court for permission (in Northern Ireland, leave) to continue the claim as a derivative claim on the ground that –

(a)the manner in which the company commenced or continued the claim amounts to an abuse of the process of the court,

(b)the company has failed to prosecute the claim diligently, and

(c)it is appropriate for the member to continue the claim as a derivative claim.

(3)If it appears to the court that the application and the evidence filed by the applicant in support of it do not disclose a prima facie case for giving permission (or leave), the court –

(a)must dismiss the application, and

(b)may make any consequential order it considers appropriate.

(4)If the application is not dismissed under subsection (3), the court –

(a)may give directions as to the evidence to be provided by the company, and

(b)may adjourn the proceedings to enable the evidence to be obtained.

(5)On hearing the application, the court may –

(a)give permission (or leave) to continue the claim as a derivative claim on such terms as it thinks fit,

(b)refuse permission (or leave) and dismiss the application, or

(c)adjourn the proceedings on the application and give such directions as it thinks fit.

Appendix C: Derivative claims (ss 260–264) 379

263Whether permission to be given

(1)The following provisions have e ect where a member of a company applies for permission (in Northern Ireland, leave) under section 261 or 262.

(2)Permission (or leave) must be refused if the court is satisfied –

(a)that a person acting in accordance with section 172 (duty to promote the success of the company) would not seek to continue the claim, or

(b)where the cause of action arises from an act or omission that is yet to occur, that the act or omission has been authorised by the company, or

(c)where the cause of action arises from an act or omission that has already occurred, that the act or omission –

(i)was authorised by the company before it occurred, or

(ii)has been ratified by the company since it occurred.

(3)In considering whether to give permission (or leave) the court must take into account, in particular –

(a)whether the member is acting in good faith in seeking to continue the claim;

(b)the importance that a person acting in accordance with section 172 (duty to promote the success of the company) would attach to continuing it;

(c)where the cause of action results from an act or omission that is yet to occur, whether the act or omission could be, and in the circumstances would be likely to be –

(i)authorised by the company before it occurs, or

(ii)ratified by the company after it occurs;

(d)where the cause of action arises from an act or omission that has already occurred, whether the act or omission could be, and in the circumstances would be likely to be, ratified by the company;

(e)whether the company has decided not to pursue the claim;

(f)whether the act or omission in respect of which the claim is brought gives rise to a cause of action that the member could pursue in his own right rather than on behalf of the company.

(4)In considering whether to give permission (or leave) the court shall have particular regard to any evidence before it as to the views of members of the company who have no personal interest, direct or indirect, in the matter.

(5)The Secretary of State may by regulations –

(a)amend subsection (2) so as to alter or add to the circumstances in which permission (or leave) is to be refused;

(b)amend subsection (3) so as to alter or add to the matters that the court is required to take into account in considering whether to give permission (or leave).

(6)Before making any such regulations the Secretary of State shall consult such persons as he considers appropriate.

(7)Regulations under this section are subject to a rmative resolution procedure.

264Application for permission to continue derivative claim brought by another member

(1)This section applies where a member of a company (“the claimant”) –

(a)has brought a derivative claim,

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(b)has continued as a derivative claim a claim brought by the company, or

(c)has continued a derivative claim under this section.

(2)Another member of the company (“the applicant”) may apply to the court for permission (in Northern Ireland, leave) to continue the claim on the ground that –

(a)the manner in which the proceedings have been commenced or continued by the claimant amounts to an abuse of the process of the court,

(b)the claimant has failed to prosecute the claim diligently, and

(c)it is appropriate for the applicant to continue the claim as a derivative claim.

(3)If it appears to the court that the application and the evidence filed by the applicant in support of it do not disclose a prima facie case for giving permission (or leave), the court –

(a)must dismiss the application, and

(b)may make any consequential order it considers appropriate.

(4)If the application is not dismissed under subsection (3), the court –

(a)may give directions as to the evidence to be provided by the company, and

(b)may adjourn the proceedings to enable the evidence to be obtained.

(5)On hearing the application, the court may –

(a)give permission (or leave) to continue the claim on such terms as it thinks fit,

(b)refuse permission (or leave) and dismiss the application, or

(c)adjourn the proceedings on the application and give such directions as it thinks fit.

Appendix D

Classes of share and class rights

Sections 629–640

CHAPTER 9

C

Introductory

629Classes of shares

(1)For the purposes of the Companies Acts shares are of one class if the rights attached to them are in all respects uniform.

(2)For this purpose the rights attached to shares are not regarded as di erent from those attached to other shares by reason only that they do not carry the same rights to dividends in the twelve months immediately following their allotment.

Variation of class rights

630Variation of class rights: companies having a share capital

(1)This section is concerned with the variation of the rights attached to a class of shares in a company having a share capital.

(2)Rights attached to a class of a company’s shares may only be varied –

(a)in accordance with provision in the company’s articles for the variation of those rights, or

(b)where the company’s articles contain no such provision, if the holders of shares of that class consent to the variation in accordance with this section.

(3)This is without prejudice to any other restrictions on the variation of the rights.

(4)The consent required for the purposes of this section on the part of the holders of a class of a company’s shares is –

(a)consent in writing from the holders of at least three-quarters in nominal value of the issued shares of that class (excluding any shares held as treasury shares), or

(b)a special resolution passed at a separate general meeting of the holders of that class sanctioning the variation.

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(5)Any amendment of a provision contained in a company’s articles for the variation of the rights attached to a class of shares, or the insertion of any such provision into the articles, is itself to be treated as a variation of those rights.

(6)In this section, and (except where the context otherwise requires) in any provision in a company’s articles for the variation of the rights attached to a class of shares, references to the variation of those rights include references to their abrogation.

631Variation of class rights: companies without a share capital

(1)This section is concerned with the variation of the rights of a class of members of a company where the company does not have a share capital.

(2)Rights of a class of members may only be varied –

(a)in accordance with provision in the company’s articles for the variation of those rights, or

(b)where the company’s articles contain no such provision, if the members of that class consent to the variation in accordance with this section.

(3)This is without prejudice to any other restrictions on the variation of the rights.

(4)The consent required for the purposes of this section on the part of the members of a class is –

(a)consent in writing from at least three-quarters of the members of the class, or

(b)a special resolution passed at a separate general meeting of the members of that class sanctioning the variation.

(5)Any amendment of a provision contained in a company’s articles for the variation of the rights of a class of members, or the insertion of any such provision into the articles, is itself to be treated as a variation of those rights.

(6)In this section, and (except where the context otherwise requires) in any provision in a company’s articles for the variation of the rights of a class of members, references to the variation of those rights include references to their abrogation.

632Variation of class rights: saving for court’s powers under other provisions

Nothing in section 630 or 631 (variation of class rights) a ects the power of the court under –

section 98 (application to cancel resolution for public company to be re-registered as private),

Part 26 (arrangements and reconstructions), or

Part 30 (protection of members against unfair prejudice).

633Right to object to variation: companies having a share capital

(1)This section applies where the rights attached to any class of shares in a company are varied under section 630 (variation of class rights: companies having a share capital).

(2)The holders of not less in the aggregate than 15% of the issued shares of the class in question (being persons who did not consent to or vote in favour of

Appendix D: Classes of share and class rights (ss 629–640) 383

the resolution for the variation) may apply to the court to have the variation cancelled.

For this purpose any of the company’s share capital held as treasury shares is disregarded.

(3)If such an application is made, the variation has no e ect unless and until it is confirmed by the court.

(4)Application to the court –

(a)must be made within 21 days after the date on which the consent was given or the resolution was passed (as the case may be), and

(b)may be made on behalf of the shareholders entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.

(5)The court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if satisfied having regard to all the circumstances of the case that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation, and shall if not so satisfied confirm it. The decision of the court on any such application is final.

(6)References in this section to the variation of the rights of holders of a class of shares include references to their abrogation.

634Right to object to variation: companies without a share capital

(1)This section applies where the rights of any class of members of a company are varied under section 631 (variation of class rights: companies without a share capital).

(2)Members amounting to not less than 15% of the members of the class in question (being persons who did not consent to or vote in favour of the resolution for the variation) may apply to the court to have the variation cancelled.

(3)If such an application is made, the variation has no e ect unless and until it is confirmed by the court.

(4)Application to the court must be made within 21 days after the date on which the consent was given or the resolution was passed (as the case may be) and may be made on behalf of the members entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.

(5)The court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if satisfied having regard to all the circumstances of the case that the variation would unfairly prejudice the members of the class represented by the applicant, disallow the variation, and shall if not so satisfied confirm it.

The decision of the court on any such application is final.

(6)References in this section to the variation of the rights of a class of members include references to their abrogation.

635Copy of court order to be forwarded to the registrar

(1)The company must within 15 days after the making of an order by the court on an application under section 633 or 634 (objection to variation of class rights) forward a copy of the order to the registrar.