By Evarist Baimu Nyaga Mawalla - Home

NICHOLLS L.J. I entirely agree with the judgments of Sir John Donaldson M.R.and Lloyd L.J. which I have had the advantage of reading in draft. I add only a fewsupplementary observations of my own.I take as may starting point Reg. v. Criminal Injuries Companies Board, Ex parteLain (1967) 2. Q.B 864,882,where Lord Parker C.J noted that the only constant limits ofthe ancient remedy of certiorari were that the tribunal in question was performing apublic duty. He contrasted private or domestic tribunals whose authority is derived solelyfrom the agreement of the parties concerned.With that in mind one looks at the Panel on Take-overs and Mergers (“thepanel”). The panel promulgates the City Code on Take-overs and Merges. As its nameimplies the code is concerned with take-over and merger transactions. Its ambit is verywide indeed. Among the companies to which it applies are all listed public companiesconsidered by the panel to the resident in the United Kingdom.Despite the wider range of the companies and persons it directly affects the panelsubmitted that it is not performing a public duty and that none of its activities issusceptible to judicial review. The only jurisdiction which the panel has is derived fromthe consent of its members. It is in the terms of Lord Perker’s dichotomy a private ordomestic tribunal whose authority is derived solely from the agreement of the bodiesconcerned. It was submitted that the activities of the panel constitute self-regulation andself-regulation involves a voluntary submission of those who deal in the market to therules laid down by the panel and a commitment to accept the decisions of the pane.I am unable to accept this as an accurate analysis of the panel’s authority and functions.The panel is an unincorporated association. Its members comprise a chairman and adeputy chairman appointed by the Governor of the Bank of England and representativesof the 11 bodies mentioned by Sir John Donaldson M.R at the beginning of his judgment.On a day-to-day basis the panel works through its executive headed by the directorgeneral. He also is appointed by the governor of Bank of England and so is the chairmanof an appeal committee, which hears appeals against rulings given by the executive.Beyond this the panel seems to have no formal constitution. Whether there is acontract between its members or between the Bank of England at the bodies whichappoint representatives and if so, what are its terms, were not matters in evidence orexplored before us. Presumably, therefore, the code and amendments to it require theapproval of all the members of the panel.175