By Evarist Baimu Nyaga Mawalla - Home

The code also contains some detailed rules. Some of these are far reaching. Thus acompany can be compelled, in certain circumstances, to make an offer, or to increase theamount of an offer it has made. Under rule 9 a person who acquires shares carrying 30percent or more of the voting rights of a company is required to make an offer topurchase all the equity capital of the company. Rule 6(2) provides that if while an offer isopen the offeror or any person acting in concert with it purchases shares at above theoffer price the offeror shall increase its offer to not less than the highest price paid for theshares so acquired.I do not suggest for one moment that these obligations are other than fair and reasonableand necessary. But, nonetheless, they are far reaching, and the sanctions for theirenforcement are also formidable; they include suspension of a listing by the Council ofthe Stock Exchange, in performance of its public duty in that regard.Thus the system which has evolved on the point am now considering isindistinguishable in its effect from a delegation by the Council of the Stock Exchange tothe panel, a group of people which includes its representative of its public law task ofspelling out standard and practices in the field of take-overs which listed companies mustobserve if they are to enjoy the advantages of a Stock Exchange listing and ofdetermining whether there have been breaches of those standards and practices. As isstated in the in the code those who do not conduct themselves in matters relating to takeoversaccording to the code cannot expect to enjoy the facilities of the securities marketin the United Kingdom.In my view and quite apart from any other factors which point in the samedirection, given the leading and continuing role played by the Bank of England in theaffairs of the pane, the statutory source of the powers and duties of the Council of theStock Exchange the wide ranging nature and importance of the matters covered by thecode and the public law consequences of non-compliance, the panel is performing apublic duty in prescribing and operating the code (including ruling on complaints).The particular factsI am not without sympathy for the applicants. The Kuwait Investment Officestood to receive about £300.000 in additional underwriting fees from Norton Opax Pls ifthe Norton Opax bid for McCorquodale Plc was successful and thus, depending uponone’s view of the likely trend in the price of Norton Opax shares that might have givenK.I.O a significant financial interest in the success of the Norton Opax bid. Then at acritical time in the course of the contest between the rival bids.When Datafin Plc was precluded from buying McCorquodale shares at above 315p pershare and Norton Opax was precluded from buying McCorquodale shares at over andNorton Opax was precluded from buying McCorquodale shares at over 303.3p per share,K.I.O bought, through the brokers who were joint brokers to the Norton Opax offer, asubstantial number of McCorquodale shares at 315.5p. I can well understand why theapplicants felt aggrieved.177