Bamford & Ors v Harvey & Anor [2012] EWHC 2858 (Ch) (18 October 2012)

Bamford & Ors v Harvey & Anor [2012] EWHC 2858 (Ch) (18 October 2012)

Permission to continue the derivative claim is refused because the claimant could have arranged for the company to commence proceedings in its own right against the first defendant under clause 11 of the Shareholders Agreement, and there is no objection to the claim proceeding in the company's name.

Citation
[2012] EWHC 2858 (Ch)
Parties
Claimant: Joseph Cyril Edward Bamford; First Defendant: John Henry Harvey; Second Defendant: Avro Heritage Limited
Jurisdiction
England and Wales
Judgment Date
18 October 2012
Procedural Posture
Derivative Claim / Application for Permission to Continue Derivative Proceedings
Outcome
permission to continue derivative claim refused; claim to be reconstituted as ordinary action in the name of the company
Legal Topics
Derivative Claims, Shareholder Remedies, Director Duties, Companies Act 2006
Company Law Derivative Claims Shareholder Remedies Director Duties Companies Act 2006

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Parties

Joseph Cyril Edward Bamford

Claimant

John Henry Harvey

First Defendant

Avro Heritage Limited

Second Defendant

Procedural Posture

Derivative Claim / Application for Permission to Continue Derivative Proceedings

Legal Issues

  1. 1 Whether permission should be granted to continue derivative proceedings under Part 11 of the Companies Act 2006
  2. 2 Whether the claimant could have procured the company to bring proceedings directly against the first defendant
  3. 3 Applicability of 'wrongdoer control' and the relevance of the Shareholders Agreement

Ratio Decidendi

Permission to continue the derivative claim is refused because the claimant could have arranged for the company to commence proceedings in its own right against the first defendant under clause 11 of the Shareholders Agreement, and there is no objection to the claim proceeding in the company's name.

Court Disposition

permission to continue derivative claim refused; claim to be reconstituted as ordinary action in the name of the company

Orders

  • Permission for derivative claim refused
  • Action to be reconstituted as ordinary Part 7 claim in the name of Avro Heritage Limited