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21 Minorities

1 Case law

Foss v. Harbottle: the internal management rule

1.1 (a) 'The proper plaintiff for wrongs done to a company is the company itself acting through its majority shareholders'.

(b) Thus decisions made or ratified by the majority cannot be disputed by the minority.

Exceptions

1.2 There are a number of apparent exceptions where an individual member may bring an action on behalf of the company (a 'derivative' action).

(a) a minority shareholder, can obtain an injunction to prevent a proposed act by the directors which would be ultra vires the company. This will not apply where the contract has already been agreed or ratified by a SR; Parke v Daily News.

(b) a minority shareholder can obtain an injunction to prevent the directors from allowing the company to commit a criminal offence;

(c) the court will grant a remedy if the directors in breach of their duties to the company have committed a 'fraud on the minority' e.g. where directors have used their powers dishonestly to benefit themselves at the expense of the company: Cook v Deeks.

Dishonest intention is not necessary gross negligence will be enough: Daniels v Daniels, but note Pavlides v Jensen.

1.3 Where the wrong is to a member personally shareholders have the right to sue to uphold their rights (S14 CA85): Pender v Lushington.

2 Statute

2.1 Members have specific rights within the CA85 to take action to prevent changes in company policy or internal regulation e.g. 55 – Alteration of objects

Members also have general rights to take action.

S.459: Conduct "unfairly prejudicial".

S.122(g)IA 86: 'Just and equitable' winding up.

3 Seeking specific action against the company

s.459 Conduct unfairly prejudicial

3.1 (a) Application can be made to the court by any member on the grounds that the company's affairs are being, have been or will be conducted in a manner unfairly prejudicial to him. Applications are often made where the majority have discriminated against a minority or committed a fraud on the minority or excluded a member from management.

(b) The Companies Act 1989 amends s.459 so that it also covers conduct which is unfairly prejudicial to the interests of the 'members generally'. This will include

(i) prolonged payment of low dividends.

(ii) issue of shares to directors on grossly advantageous terms

(iii) refusal to register shareholders ownership of shares

(iv) unfair removal from the Board or other exclusions from management

(c) Mere bad management will not necessarily be sufficient. There must also be unfair prejudice. Mere breakdown of trust or confidence will not normally suffice. However, if continued mismanagement causes serious financial damage to the company and the minority interests then a claim under s.459 should be successful.

(d) Application can also be made by persons who are not members:

(i) The Secretary of State following a D.T.I. report.

(ii) persons whose share transfers have not been registered.

(e) The court may make whatever order it thinks fit, s.461 CA85 gives the cast a very wide disretion, for example:

(i) regulate the conduct of the company's affairs in the future; HR Harmer Ltd;

(ii) require the company to stop the act being complained about;

(iii) authorise civil proceedings (e.g. in a Foss v Harbottle) situation;

(iv) provide for the purchase of shares by members or the company.

shares are valued at their pre?prejudice price and as though they were part of a majority holding.

s.122 IA 86 "Just and equitable" winding up

3.2 Any member may apply for the company to be wound up. It may be appropriate in the following circumstances:

(a) If the substratum has failed.

(b) If there is deadlock in management.

(c) If a member is being excluded from management in a quasi?partnership company.

Note however that in most cases s.459 would provide a more attractive remedy.

4 DTI investigations

4.1 The DTI also has statutory powers to investigate the affairs of a company where malpractice is alleged against those persons who manage or control the company ss 431-432.