In BTI 2014 LLC v SEQUANA (2022 UKSC 25 the Supreme Court say that Directors owe their duties to the company, rather than directly to shareholders or creditors of the company. There is not a free-standing duty owed to creditors. However, where the company is insolvent, or bordering on insolvency, then the interests of creditors as a general body should be considered even if , and balanced against the interests of shareholders. The greater the company’s financial difficulties the more the directors should prioritise the interests of creditors when making for example to pay a dividend and if so how much. Once insolvency is inevitable the creditors’ interests become paramount.
Subsidy Control Act 2022
July 7th, 2022 by James Goudie KC in Capital Finance and CompaniesThe new regime is due to come into force Autumn 2022. It will consist primarily of the provisions in the subsidy control chapters of the Trade & Co-Operation Agreement with the EU, the Subsidy Control Act 2022, Regulations and Guidance from BEIS and the CMA. BEIS is currently consulting on Guidance under Section 79 of the Act.
Subsidy Control
May 10th, 2022 by James Goudie KC in Capital Finance and CompaniesPublic funding/support given in the UK since 1 January 2021 has no longer been subject to EU State Aid Law. Compliance has since then been required with the Trade and Co-Operation Agreement between the UK and the EU (the TCA), incorporated into domestic law by Section 29 of the EU (Future Relationships) Act 2020. Now the Subsidy Control Act 2022 (the Act) has been enacted, and Regulations are to be made, and Guidance provided thereunder, including with respect to “Subsidies of Particular Interest” and “Subsidies of Interest”, under Section 11 of the Act. Main purposes of the Act are to provide detail on the implementation of the TCA and to define “subsidy”.
Subsidy Control / State Aid
April 21st, 2022 by James Goudie KC in Capital Finance and CompaniesIN VOLOTEA v COMMISSION, Joined Cases C-331/20P and C-343/20P, Advocate General Capeta addresses, at paras 62-114 inclusive, the Market Economy Operator Principle ( the MEO ). The applicability of the MEO test is governed by the NATURE of the activities, that is by whether the public authority intervention is through an activity comparable to what could be envisaged in the market. The test is applicable to all situations in activities are performed by the authority comparable to market activities. These include when the authority acts in a way comparable to a market operator. This is decided by an objective enquiry into HOW the authority engages with undertakings on a given market, irrespective of the form and reasons for that engagement.
Borrowing
March 24th, 2022 by James Goudie KC in Capital Finance and CompaniesThe Combined Authorities (Borrowing) Regulations 2022, S.I. 2022/358, provide the North of Tyne, South Yorkshire and West Yorkshire Mayoral Cas with power to borrow money for any function.
Subsidy Control
July 1st, 2021 by James Goudie KC in Capital Finance and CompaniesSubsidy Control replaced State Aid six months ago. A Subsidy Control Bill has now been published.
Director Duties
May 19th, 2021 by James Goudie KC in Capital Finance and CompaniesA fiduciary, such as a company director, must not act in a position where his interest and his duty conflict or may possibly conflict. An exception is when there is fully informed consent, the burden of proving which is upon the fiduciary. As to informed consent, including implied consent, see John Reader v Spie Ltd (2021) EWHC 1221 (QB), in the context of an enhanced bonus on a TUPE transfer.
State Aid during Covid
April 15th, 2021 by James Goudie KC in Capital Finance and CompaniesDamage is caused by an exceptional occurrence, such as the Covid-19 pandemic. The entirety of the damage is not made good. Not all victims receive aid from state resources. In Cases T-378&379/20, Ryanair v Commission, it is held that it does not follow that a measure benefitting an individual company is state aid and/or discriminatory, provided that the benefit does not overcompensate and is proportionate.
Companies
March 9th, 2021 by James Goudie KC in Capital Finance and CompaniesThe Duomatic principle, that anything a company’s members could do by formal resolution they could also do informally if they all assented to it, does not apply where the transaction would be ultra vires: Satyam Enterprises Ltd v Burton (2021) EWCA Civ 287.
Companies
February 25th, 2021 by James Goudie KC in Capital Finance and CompaniesIn Byers v Chen (2021) UKPC 4 the Privy Council affirmed, at paras 64/65, the Duomatic principle, that, where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be. The Privy Council also affirmed, at paras 68/69, that a director who has given the company proper notice of his or her resignation is not entitled to withdraw that notice, save with the consent of the company or possibly the ultimate beneficial owner.