Company Law 1 - University of Wolverhampton

Distance Learning Module PlannerCompany Law 1Course Code: MP–LD3046Module Leader: Roger Gregory© University of Wolverhampton 2007All rights reserved. No part of this publication may be reproduced or transmitted in any form or byany means, electronic, mechanical, photocopying, recording or otherwise, or stored in any retrievalsystem of any nature without either the written permission of the copyright holder, application forwhich should be made to the University of Wolverhampton, or a licence permitting restricted copyingin the United Kingdom issued by the Copyright Licensing Agency. Any person who infringesthe above in relation to this publication may be liable to criminal prosecution and civil claims fordamages.

ContentsHow to Use Your Module Planner 5Topics Covered by Module 7Skills to be Developed and Examined 8Examinations 9A Brief Guide to Study Skills 10Introduction to Study Units 13Reading List 14Study Unit 1: Introduction to Company Law 16Study Unit 2: Promoters and Pre-Incorporation Contracts 19Study Unit 3: Separate Legal Personality 22Study Unit 4: Memorandum of Association, the Rule in Turquand’sCase and Agency Principles 27Study Unit 5: Articles of Association 31Study Unit 6: Meetings 35Study Unit 7: Shares 39Study Unit 8: Maintenance of Share Capital 43Study Unit 9: Raising Capital – Offer of Shares to the Public 46Learning Project 49Practice Question and Suggested Answer 53Revision 59Taking the Examination 63Module Questionnaire 65

How to Use Your Module PlannerThe Module Planner is vital to your studies. It divides the work in each area into Units, and showsyou the minimum number of hours you should spend on each Unit, at the top right hand corner ofthe first page of each Study Unit, in order to understand the law involved. You should plan on devotinga minimum of 150 hours to each module you study.The section headed ‘Essential Reading’ contained in the Reading List and each Study Unit refersyou to the materials with which you are provided: the Textbook, Cases and Materials and StatuteBook. The materials listed in the Essential Reading are sufficient to enable you to complete thecourse very effectively.The section headed ‘General Reading’ lists other books which, if you wish, you can read to giveyou other approaches to the law. These books are not provided but you should be able to purchasethem from Hammicks Legal Bookshop, whose address, telephone number and website detailsare provided in the General Reading section of the Reading List. They are not essential foryou to be successful on the course, but they may help to give you a different viewpoint of the lawinvolved in this module.The Module Planner guides you through the course. Work through it logically, and in order, andmake sure you understand one Unit before you move on to the next. At the end of each Unit youwill find a set of Self-Study Questions. Test yourself on these and make sure you understand thembefore you move onto the next Unit.At the end of the Study Units you will find the Learning Project. A compulsory question will be setin the examination in Section A of your paper on all or parts of the material covered by the LearningProject, and this will count for 50 per cent of your overall grade, so it is essential that you ensureyou study and understand all aspects covered by it. The Study Units which relate to theLearning Project have been indicated to guide you through this material while you study.The Module Planner is your guide to the topic of English law that it covers. Have it with you as youstudy and you will make the most of this opportunity to obtain the best law degree of which youare capable.

With this Module Planner you should have the following materials:Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)If you do not receive this set of materials, please contact:Distance Learning DepartmentHolborn CollegeWoolwich RoadCharltonLondonSE7 8LNTel: +44 (0) 208 317 6000Fax: +44 (0) 208 317 6003E-mail: dl@holborncollege.ac.uk

Topics Covered by ModuleThis module covers the following topics within English law.Introduction to Company LawPromoters and Pre-Incorporation ContractsSeparate Legal PersonalityMemorandum of Association, the Rule in Turquand’s Case and AgencyPrinciplesArticles of AssociationMeetingsSharesMaintenance of Share CapitalRaising Capital – Offer of Shares to the Public

Skills to be Developed and ExaminedTo be successful in the end of module examination you need to show that you understand andcan apply the area(s) of law you have been studying. You must be able to demonstrate this to theexaminers by writing answers which communicate the points you wish to make accurately and ingood English. This is a key part of demonstrating that you have understood the points of law, thecases and the Acts of Parliament that you have studied.Before you start to write your answer, identify the issues that are relevant to the question. Thesemust be clearly stated in your short introductory paragraph(s). When referring to case law andstatute law, you then need to explain the relevant legal principles in the context of the issues youidentified in your introductory paragraph(s). Finally, you need to write a concluding paragraphwhich brings your points together. Do not write everything you know about an area, or writeanswers that take the form of a series of notes. Your answer should be structured in the way describedabove and be written in good English.For further guidance on how you will be graded please consult your Award Guide which containsan explanation of the criteria used to grade your work.It is important that you practice answering questions and in particular take the opportunity to submita sample question for marking and feedback. This question is contained in the Practice Questionsection of the Module Planner.

ExaminationsThis module is assessed by one, two hour, unseen written examination. Examinations take placein September, January, and May of each year. The examination is in two parts: Part A is a compulsoryquestion and counts for 50 per cent of the total grade, Part B has four questions of whichyou will be required to answer two only. Each of the questions in Part B is worth 25 per cent of thetotal grade.The compulsory question in Part A is based on those topics which make up the Learning Project.You will find details of the Learning Project and the topic area covered by it at the end of the StudyUnits in this Module Planner. You should read this section carefully to identify those areas of themodule covered by the Learning Project.You will, therefore, know in advance of the examination that there will be a substantial question onthe topics covered by the Learning Project. When you write the examination you should make surethat you devote 50 per cent of the time to the question in Part A. Your answer to this questionshould normally be about twice as long as your answer to the two questions in Part B.The purpose of the Learning Project is to allow you to study a significant part of the syllabus indepth in the sure knowledge that you will be examined on it. In this way, hard-working studentswho have studied their materials thoroughly will be able to write an in-depth answer and have fullcredit for the work they have done reflected in the grade awarded.There is no assessed coursework for this module. The total grade for the module is based uponthe unseen written examination. Although you should make sure that you cover the whole syllabus,it is particularly important that you study those syllabus topics which are covered by theLearning Project thoroughly so that you can write a complete answer to the compulsory questionin Part A and take advantage of the fact that this question is worth 50 per cent of the grade.The examination is a two-hour examination with an additional 15 minutes reading time. It is an unseenexamination. You will, however, be able to take into the examination an unmarked copy ofyour 150 Leading Cases, Statute Book and Law Update (this means that you should not write onthese materials; you are only allowed to underline or highlight part of the text). As stated above,you will also know what topics will be covered by the compulsory question in Part A of the examination,provided you have studied the details of the Learning Project at page 44 of this Planner.

A Brief Guide to Study SkillsAs a distance learning student you will undoubtedly have other demands on your time. It is, therefore,important that you use your time effectively. The following tips are intended to help you doso.Time ManagementBe realistic.Work out what time you have available for study; take out time for sleeping, eating, recreation,etc.Try to plan ahead – do not leave everything to the last minute.Prioritise – do not do the easiest task first, but the one that really needs to be done first.Set objectives which are reasonable, and make sure that they are somewhere you seethem.Break large tasks into manageable sub-tasks and set target dates against each sub-task.Keep a wall planner chart.Try doing the most difficult things when you feel at your best.Remember the unexpected always happens, so be flexible – don’t get angry when planshave to change.Effective ReadingReadingReviewRead with purpose (what questions have to be answered?).Read selectively – scan and skim – only read in detail what you need to.Mentally recite what you have just read.Make notes at appropriate points – bullet points, do not rewrite the whole book.Did I answer the questions I wanted to?Do I understand and remember what I read?

StudyingWhere?Choose somewhere that is conducive to study. You need: a large table or desk; a suitablechair; a bookcase; adequate, suitable lighting; adequate ventilation; reasonable temperature– too cold,you can’t concentrate – too warm, you will go to sleep.Banish distractions – magazines, radio, telephone, TV.Decide where you study best, and try to keep to it.When?How?When you are alert.Not when you are too tired.When it is the best time of day for you – some people work better at night, others early inthe morning.Try studying for 50 minutes, break for 10 minutes, etc.Have all you need available – pens, pencils, dictionary, PC, etc.Avoid too much physical relaxation or you will go to sleep!Actively study – make notes, etc. It is difficult to just read for toolong; it makes you sleepy and you lose concentration.Remember to have breaks and do have time for relaxation.Set yourself targets, and give yourself rewards!Practice QuestionsAt the end of each unit you will find Sample Questions, and at the end of the Planner is a PracticeQuestion and Suggested Answer. strongly advised to submit at least one answer to either a SampleQuestion or the Practice Question for marking. Unless you do so you will not gain any insightinto your strengths and weaknesses.

Introduction to Study UnitsThe Study Units deal with the individual topics covered by the module. The module is brokendown into Study Units to enable you to look at each area of law in digestible parts. You must workthrough each Study Unit in order, ensuring that you understand the material covered by each Unitbefore progressing on to the next one.Each Study Unit is broken down into four major sections.Reading ListThis indicates what reading you must do (Essential Reading) in order to cover all of the materialset in the Unit. All material listed in the Essential Reading is provided as part of your study materials.You can, if you wish, further your knowledge and understanding by completing the GeneralReading in each Unit. These materials are not essential for you to complete the course, but youmay find them useful in your study. Such materials are not supplied, and you are responsible forobtaining copies of the titles listed in the General Reading. Details are given in the Reading List ofsuppliers.Case Law and StatutesThis section directs you to those cases and statutes that you will need to read and understand inorder to complete the Unit. All materials listed here can be found in your Textbook or 150 LeadingCases.Self-Study QuestionsThese are questions designed to set the parameters of the Study Unit and to test your applicationof the basic principles.Sample QuestionsThese may be essay or problem questions, often taken from past examination papers. You shouldattempt your own answers to all of these questions.

Reading ListThese are the titles that you will use throughout the course. They are referred to in the readingsection of each Study Unit, to guide you in your learning.Essential ReadingAll materials listed here must be read in order for you to understand the module. These books aresupplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese materials are not supplied, and are not essential to pass themodule. You may, however, wish to refer to them to deepen yourunderstanding of the topics covered by the course. You are responsiblefor obtaining your own copies of these titles. If you choose to do so, youshould be able to purchase them by contacting Hammicks LegalBookshops at 192 Fleet Street, London EC4A 2NJ; tel: +44 (0)20-7405-5711 or you can order online at www.hammickslegal.co.uk.Gower and Davies: the Principles of Modern Company LawDavies (7th edition 2003) Sweet & MaxwellCompany Law: Mayson, French and Ryan(new edition every September) Oxford University PressCases and Materials in Company Law: Sealy (7th edition 2001) ButterworthsIn addition, in each Study Unit you will find a list of cases which should be consulted. Summariesof these can be found in the 150 Leading Cases; cases marked with an * are referred to in theTextbook. If you have access to the Internet you may wish to take advantage of the legal materialsavailable via this source. See your Award Guide for details.For those students who have never studied the law, certain terminology used may be difficult tounderstand at first. As you progress through the course, you will learn a range of new words andphrases that are frequently used in the study of law. If you encounter any difficulties with the terminologyused, however, you will find it useful to refer to a legal dictionary, which will explain themeaning of legal words and phrases in plain English. Mozley and Whitley’s Law Dictionary (12thedition 2001) by Butterworths is very helpful, and can be purchased through Hammicks LegalBookshops.

Study Unit 1 Suggested minimum study hours: 10TopicIntroduction to Company LawIntroductionThe Companies Acts provide for three basic types of registered company, a company limited byguarantee, an unlimited company and a company limited by shares, with two forms of company:public and private.Objectivesa To consider the nature of a company and compare it with(i) a partnership(ii) an unincorporated association and (iii) a trust.b To consider what difficulties are involved in operating anunincorporated association and how these are avoided by a company.c To consider what formalities must be fulfilled in order to register acompany.d To consider the impact of EC Directives on company law.Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, butyou may wish to refer to them to further your understanding. Gower and Davies: the Principles ofModern Company Law, Davies – Relevant Chapter(s)Case law and statutesEbrahimi v Westbourne Galleries Ltd [1973] AC 360R v Registrar of Companies, ex parte Attorney-General [1991] BCLC 476R v Registrar of Companies, ex parte Bowen [1914] 3 KB 161R v Registrar of Companies, ex parte More [1931] 2 KB 197Salomon v Salomon & Co [1897] AC 22Business Names Act 1985: ss2 and 5Companies Act 1985: ss25–34 and 117Company and Business Names Regulations 1981, as amended by SI1982 No 1653 and SI 1992 No 1196Limited Liability Partnership Act 2000Cases marked with an * can be found in your Textbook; all other cases

Self-Study Questions1 What is meant by limited liability?2 What are the main differences between a private and a publiccompany?3 What advantages and disadvantages are there to incorporation?4 What conditions or requirements must be satisfied before a companycan be registered as a public company?5 What is the purpose of (a) the memorandum of association and (b) thearticles of association?Sample Questions1 Describe the main features of a registered company. Is the liability of a member to contributetowards a company always limited in some way?Can a principle of separate legal personality ever operate to the disadvantage of the members ofthe company? Why are companies so important in a modern (western) economy?(Wolverhampton LLB by Distance Learning Question.)2 Julian, Wilson and Steed are in business as partners in a carpet retail firm. They are consideringforming a company, limited by shares, in order to promote future expansion of the business.They seek your advice as to the following:a the advantages of initially forming a private limited company;b the formalities and the capital requirements which are necessary to incorporate such a company;c the extent to which the company’s finances and membership would become public knowledge;d the practical requirements of inserting a clause which would prevent a member of the companyfrom selling his shares to an outsider without obtaining the consent of the other members.(Wolverhampton LLB by Distance Learning, September 1999,Question 2.)

Study Unit 2 Suggested minimum study hours: 10TopicPromoters and Pre-Incorporation ContractsIntroductionWe shall examine the role of individuals who form companies, and their duties and liabilities in respectof this task.Objectivesa To consider who will be regarded as a promoter and whether any definition of the term‘promoter’ is possible or advisable.b To compare the fiduciary position of a promoter with those of a trustee and an agent.c To examine s36C(1) CA 1985 and the Court of Appeal decision in Phonogram v Lane.Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, but you may wish to refer tothem to further your understanding.Gower and Davies: the Principles of Modern Company Law, Davies – Relevant Chapter(s)Case law and statutesBraymist Ltd v Wise Finance Co Ltd [2002] 2 All ER 333Cape Breton Co, Re (1885) 29 Ch D 795Cotronic (UK) Ltd v Dezonie [1991] BCC 200Ebrahimi v Westbourne Galleries Ltd [1973] AC 360English and Colonial Produce Co Ltd, Re [1906] 2 Ch 435Gluckstein v Barnes [1900] AC 240Howard v Patent Ivory Manufacturing Co (1866) 38 Ch D 156Kelner v Baxter (1866) LR 2 CP 174Lagunas Nitrate Co v Lagunas Syndicate Ltd [1899] 2 Ch 392Leeds and Hanley Theatre of Varieties Ltd, Re [1902] 2 Ch 809Newborne v Sensolid (Great Britain) Ltd [1954] 1 QB 45Northumberland Avenue Hotel Co, Re (1886) 33 Ch D 16Oshkosh B’Gosh Inc v Dan Marbel Inc and Craze (1988) 4 BCC 795Phonogram v Lane [1981] 3 All ER 182Rover International Ltd v Canon Films Ltd [1989] 3 All ER 423Salomon v Salomon & Co [1897] AC 22Twycross v Grant (1877) 2 CPD 469Companies Act 1985: ss14 and 36

Insolvency Act 1986: ss131, 132, 133 and 134Public Offers of Securities Regulations 1995 (SI 1995/1537)Self-Study Questions1 What is the nature of the fiduciary duty imposed on promoters?2 If a promoter makes a secret profit out of the promotion can this be recovered without rescindingthe contract between the company and the promoter?3 In what ways can a promoter be rewarded for his services? What procedures must be observedin each case?4 What remedies are open to a promoter where the company refuses to reward him for his services?5 Why do promoters make pre-incorporation contracts?6 Consider the decision in Phonogram v Lane. Is s36 CA 1985 confined to companies already inexistence?Sample Questions1 a To what extent has s36 of the Companies Act 1985 solved the problems surrounding pre-incorporationcontracts?b How may a promoter avoid liability for pre-incorporation contracts?(Wolverhampton LLB by Distance Learning, September 2000, Question 4.)2 John is about to take the necessary steps to form a company, John Wilson Ltd, which will produceand sell shoes. Before the company is incorporated he makes two agreements.a He agrees orally with Frank to buy ten tons of leather from him, Frank being fully aware that thecompany has not yet been formed, but that John intends the leather for the company’s use.b He enters into a written agreement with Peter to sell him 500 pairs of shoes. John signs theagreement: ‘John Wilson Ltd (John Wilson)’.Peter knows nothing else of John’s company.John can now buy the leather cheaper and no longer wants to buy Frank’s leather. Peter, who ishaving difficulties selling the shoes he has bought from other sources, has refused to accept theshoes.Advise John.(Wolverhampton LLB by Distance Learning Question.)

Study Unit 3 Suggested minimum study hours: 10TopicSeparate Legal PersonalityIntroductionA company is a separate legal personality and a veil of incorporation is drawn between the personsdealing with a company and its members.Objectivesa To examine the cases where the court has lifted the corporate veil. Is there any principle whichties these cases together?b To consider the effect of the rule in Salomon v Salomon in commercial life and its advantagesand disadvantages.c To compare a company with (a) partnership and (b) an unincorporated association.d To consider the cases on the criminal liability of a company. When willa company be held criminally liable, in particular the types of offences it will be capable of committing.How does ‘alter ego’ affect a company’s criminal liability?Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, but you may wish to refer tothem to further your understanding. Gower and Davies: the Principles of Modern Company Law,Davies –Relevant Chapter(s)Case law and statutesAdams v Cape Industries plc [1991] 1 All ER 929; [1990] 2 WLR 657Bolton (HL) (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159Bugle Press Ltd, Re [1961] 1 Ch 270; [1960] 3 All ER 791Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307Deutsche Genossenschaftsbank v Burnhope & Others [1995] 1 WLR 1580; [1995] 4 All ER 717(HL)DHN Food Distributors v London Borough of Tower Hamlets [1976] 1 WLR 852Director of Public Prosecutions v Kent and Sussex Contractors Ltd [1944] KB 146Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968]2 All ER 987El Ajou v Dolar Land Holdings plc [1994] BCC 143Gilford Motor Co v Horne [1933] Ch 935H and Others (Restraint Order: Realisable Property), Re [1996] 2 All

ER 391 (CA)Jones v Lipman [1962] 1 WLR 832; [1962] 1 All ER 442 (CA)Lee v Lee’s Air Farming [1961] AC 12Lennard’s Carrying Co v Asiatic Petroleum Co Ltd [1915] AC 705Lindholst & Co A/S v Fowler & Another (1988) 4 BCC 776Macaura v Northern Assurance Co Ltd [1925] AC 619Meridian Global Funds Management Asia Ltd v SecuritiesCommission [1995] BCC 942; [1995] 3 All ER 918; [1995] 3 WLR 413 (PC)Moore v I Bresler Ltd [1944] 2 All ER 515Multinational Gas and Petrochemical Co v Multinational Gas andPetrochemical Services Ltd [1983] Ch 258; [1983] 2 All ER 563 (CA)Ord v Belhaven Pubs Ltd [1998] BCC 607Penrose v Official Receiver [1996] BCC 311; [1996] 2 All ER 96Polly Peck International plc (No 3), Re [1996] BCC 486R v Andrews Weatherfoil Ltd [1972] 1 WLR 118; [1972] 1 All ER 65R v Gateway Foodmarkets Ltd [1997] 3 All ER 78R v ICR Haulage Ltd [1944] KB 551Salomon v Salomon & Co [1897] AC 22Seaboard Offshore Ltd v Secretary of State for Transport [1994] 2 All ER 99 (HL)Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116Supply of Ready Mixed Concrete (No 2), Re [1995] 1 AC 456Tesco Stores Ltd v Brent London Borough Council [1993] 1 WLR 1037Tesco Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127 (HL)Trustor AB v Smallbone [2001] 2 BCLC 436Williams and Another v Natural Life Health Foods Ltd [1998] BCC 428; [1998] 2 All ER 577 (HL)Yukong Line Ltd of Korea v Rendsburg Investments Corp of Liberia,The Rialto [1998] BCC 870; [1998] 4 All ER 82Business Names Act 1985Companies Act 1985: ss14, 22, 23, 24, 348, 349, 406, 458, 630 and 736Companies (Single Member Private Limited Companies) Regulations 1992Insolvency Act 1986: ss212–216Self-Study Questions1 What is the extent of liability of a member of (a) a company limited by shares; (b) a company limitedby guarantee; (c) an unlimited company;(d) an unincorporated association; (e) a partnership; (f) an unlimited partnership; and (g) a soletrader?2 Who has the right to take or defend legal proceedings in respect of acause of action relating to a company?3 Who owns a company’s assets:a the shareholders;b the directors;c the creditors;d the company itself?4 What is the effect of ss213 and 214 IA 1986? How and to what extentdo they cause a lifting of the corporate veil?5 What is the object of ss348 and 349 CA 1985?Sample Questions1 ‘The doctrine laid down in Salomon v Salomon & Co Ltd (1897) has to be watched carefully …The legislature has shown the way with group accounts and the rest. The courts should followsuit.’ (Per Lord Denning MR in Littlewoods Mail Order Stores Ltd v CIR.) Discuss.(Wolverhampton LLB by Distance Learning, January 2001, Question 2.)

2 a ‘In the Albazero [1977] AC 774 … Roskill LJ described it as a fundamental principle of Englishlaw “long established and now unchallengeable by judicial decision … that each company in agroup of companies is a separate legal entity possessed of separate legal rights and liabilities … .’Discuss.b Mary and Jacques are both directors and shareholders of Smart Furnishings plc. Jacques is gettingolder and wishes to retire soon. Mary is looking forward to Jacques leaving, although shedoes have some reservations about running the company on her own. She has always wanted tochange the company’s name to Stylish Homes plc, a name used by a company which she ran,which was placed into insolvency a few years ago. She did get into trouble with the courts regardingher running of Stylish Homes plc but she just wants to forget this now. Mary and Jacques haveboth ignored warnings from the auditors of Smart Furnishings plc regarding the company’s financialposition.Advise Mary and Jacques.(Wolverhampton LLB by Distance Learning Question.)3 a William carried on a building business as a sole trader until 1996. In 1996 he formed a companycalled Buildrite Ltd, became managing director but continued to insure the company’s assetsin his own name, as he had done before the company’s incorporation. Last month the premises ofBuildrite Ltd were damaged by fire. William has claimed under the insurance policy, but the insurancecompany refuses to meet his claim.Advise William. b Buildrite Ltd was taken over by Megabuild plc, and became one of Megabuildplc’s subsidiary companies. Megabuild plc controlled Buildrite Ltd’s activities and Buildrite Ltd’sprofits were treated as profits of the parent company.East Mercia Corporation (EMC) wishes to compulsorily acquire land belonging to Buildrite Ltd inorder to build a trading estate. Megabuild has submitted a claim for the value of the land and disturbance,but EMC has stated that in its opinion any moneysshould be paid to Buildrite Ltd.Advise Megabuild plc.c William’s contract with Buildrite Ltd contains a clause which states that in the event of his leavingthe employment of Buildrite he will not solicit their customers for a period of 18 months. He resignsas managing director and forms a new company Cementine Ltd, which is also in the building andconstruction business. He appoints Tom as a sales representative and gives Tom a lot ofBuildrite’s customers. Tom immediately begins soliciting Buildrite’s customers.Advise Buildrite.(Wolverhampton LLB by Distance Learning, May 1999, Question 3.)

Study Unit 4 Suggested minimum study hours: 15TopicMemorandum of Association, the Rule in Turquand’s Case and AgencyPrinciplesIntroductionA company’s memorandum is a document which outlines the scope of a company’s powers andregulates a company’s relationship with the outside world.Objectivesa To consider the original purpose behind the requirement that the objects of the company shouldbe stated in the memorandum and how this has been affected by decisions in this century.b To look at the provisions of the Business Names Act 1985 on business names. What is the purposebehind these provisions?c To consider the current legal position regarding the ultra vires doctrine, and the power of companyofficers to bind the company in contract.Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, but you may wish to refer tothem to further your understanding. Gower and Davies: the Principles of Modern Company Law,Davies – Relevant Chapter(s)Case law and statutesAshbury Railway Carriage and Iron Co Ltd v Riche (1875) LR 7 HL 653Bell Houses Ltd v City Wall Properties Ltd [1966] 2 QB 656Charterbridge Corporation Ltd v Lloyds Bank Ltd [1969] 2 All ER 1185Cotman v Brougham [1918] AC 514Evans v Brunner, Mond & Co Ltd [1921] 1 Ch 359First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] BCC 533Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480Halt Garage (1964) Ltd, Re [1982] 3 All ER 1016Hely-Hutchinson v Brayhead Ltd [1967] 3 All ER 98Horsley and Weight Ltd, Re [1982] 3 All ER 1045; [1982] 3 WLR 431International Sales and Agencies Ltd v Marcus [1982] 3 All ER 551Introductions Ltd, Re [1970] Ch 199Lee Behrens & Co Ltd, Re [1932] 2 Ch 46Mahony v East Holyford Mining Co (1875) LR 7 HL 869

Rafsanjan Pistachio Producers Co-operative v S Reiss [1990] BCLC 352Rolled Steel Products Ltd v British Steel Corporation [1985] 2 WLR908; [1985] 3 All ER 52 (CA)Royal British Bank v Turquand (1855) 5 E & B 248Simmonds v Heffer [1983] BCLC 298Williams and Another v Natural Life Health Foods Ltd [1998] BCC428; [1998] 2 All ER 577 (HL)Business Names Act 1985Companies Act 1985: ss2, 3, 3A, 4, 25, 26, 27, 28, 30, 31, 35, 35A, 35B,348, 349, 380, 714 and 719Note: Insolvency Act 1986: ss187 and 216Self-Study Questions1 What is the supposed rationale behind the requirement that a company’s objects be stated in thememorandum?2 What is a ‘Bell Houses’ clause?3 Distinguish between the objects and the powers of a company.4 Can a company make valid gifts (a) to its members; (b) to its employees; (c) to its customers; (d)to its competitors, if it has noexpress power to make gifts?5 Can an ultra vires transaction ever be ratified by the company?Sample Questions1 New School Ltd is a company which is entirely directed by a board of trustees who are the directorsof the company. Its objects include: a to educate girls; b to give money to girls to enable themto proceed to higher education; c to do all things the trustees consider desirable. There is an independentobjects clause.James, Tim and Ron are members of the board of trustees and consequently directors of the company.Ron, who is responsible for promoting the good name of the school, arranges for the companyto donate £20,000 to research into a cure for lung cancer. Without reference to his fellowdirectors he arranges for the company to create a covenant to this effect. The trustees also authorisea gift to Mary who has been accepted on a course at a finishing school in Switzerland. Timand Ron agree with the majority of the directors that boys should be admitted to the school, andfive boys are provisionally accepted as pupils at the school, their parents paying deposits of £500each. One of the parents decides not to send his son to the school and asks for a return of his deposit.Advise James who is a member of the company and who objects to the covenant to pay the£20,000 to the proposed gift to Mary, and to the decision to admit boys. Advise also the parentswho wish to have their deposit returned.(Wolverhampton LLB by Distance Learning Question.)2 Sparks, an electrician, instructed his solicitor to incorporate his business as a private company.Sparks took 70 per cent of the issued share capital and two of his employees, Frank and Stein,took the remaining 30 per cent of the issued share capital in equal proportions. The company wasregistered with the name ‘Bright Sparks Limited’ and had objects which provided that the companywas to carry on a business as electrical suppliers. Sparks, Frank and Stein were named as thecompany’s directors.

Prior to the company’s registration, Sparks, writing on notepaper headed ‘Bright Sparks Limited’,agreed to supply Waterworks Limited with a large quantity of gas ovens. Sparks signed the letter‘Bright Sparks Ltd, Sam Sparks, Managing Director’.After the company was registered, Sparks agreed to take a loan on behalf of the company fromNat East Bank plc, for the sum of £30,000 to be repaid over five years. Sparks did not seek theapproval of his fellow directors when taking out the loan. Sparks wished to use the funds from theloan for the purpose of purchasing gas ovens. The manager of Nat East Bank plc agreed to theloan despite the fact that he had not, as required, obtained approval from his head office (a factknown to Sparks) to authorise the loan.Six months after taking out the loan, Sparks was informed by the Nat East Bank that the loan wasinvalid and that it must be paid back in full. However, Sparks was unable to comply with the bank’sdemand in that he had already purchased the gas ovens (total price £20,000) having spent therest of the money on donations to the Raving Monster Looney party, and a local college whichspecialised in electronics. At a board meeting of the company, Frank questioned the legality ofthe contract with Waterworks Ltd, the bank loan and the donations.Advise Sparks.(Wolverhampton LLB by Distance Learning Question.)3 To what extent has the rigidity of the doctrine of ultra vires been mitigated by statutory intervention,and by attempts by companies to evade it?(Wolverhampton LLB by Distance Learning, January 2000, Question 2.)

Study Unit 5 Suggested minimum study hours: 15TopicArticles of AssociationIntroductionThe articles contain the internal regulations for the management of the company’s affairs. They setout the manner in which a company must conduct its affairs and govern the rights of the membersamong themselves.Objectivesa Consider the purpose of the articles and their general contents.b What are the special features of the s14 contract?c Consider the meaning of the phrase ‘bona fide in the interests of the company as a whole’ in thecontext of an alteration of the articles.d What types of evidence are acceptable to the court in establishing thatan alteration is not bona fide in the interests of the company as a whole?Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, butyou may wish to refer to them to further your understanding.Gower and Davies: the Principles of Modern Company Law, Davies –Relevant Chapter(s)Case law and statutesARTICLES OF ASSOCIATION – GENERAL PRINCIPLESBeattie v E & F Beattie Ltd [1938] 1 Ch 708Bratten Seymour Service Co Ltd v Oxborough [1992] BCC 471 (CA)Clemens v Clemens Bros Ltd [1976] 2 All ER 268Eley v The Positive Government Security Life Assurance Co Ltd (1876) 1 Ex D 88Foss v Harbottle (1843) 2 Hare 461Hickman v Kent or Romney Marsh Sheepbreeders’ Association [1915] 1 Ch 881New British Iron Co, ex parte Beckwith, Re [1898] 1 Ch 324North-West Transportation Co Ltd v Beatty (1887) 12 App Cas 589Pender v Lushington (1877) 6 Ch D 70Quinn & Axtens v Salmon [1909] AC 442Rayfield v Hands [1960] 1 Ch 1Scott v Scott [1940] Ch 794

Shuttleworth v Cox Bros & Co (Maidenhead) Ltd [1927] 2 KB 9 (CA)Wood v Odessa Waterworks Co (1889) 42 Ch D 636ARTICLES OF ASSOCIATION – ALTERATION OF ARTICLESAllen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656Andrews v Gas Meter Company Ltd [1897] 1 Ch 361Brown v British Abrasive Wheel Co [1919] 1 Ch 290Cane v Jones [1980] 1 WLR 1451; [1981] 1 All ER 533Clemens v Clemens Bros Ltd [1976] 2 All ER 268Cumbrian Newspapers Group Ltd v Cumberland and WestmorelandHerald Newspaper and Printing Co Ltd [1987] Ch 1; [1986] 2 All ER 816Dafen Tinplate Co Ltd v Llanelly Steel Co (1907) Ltd [1920] 2 Ch 124Eley v The Positive Government Security Life Assurance Co Ltd (1876) 1 Ex D 88Greenhalgh v Arderne Cinemas Ltd [1951] Ch 286 (CA)Hickman v Kent or Romney Marsh Sheepbreeders’ Association [1915] 1 Ch 881House of Fraser plc v ACGE Investments Ltd and Others [1987] BCLC 478Northern Counties Securities Ltd v Jackson and Steeple Ltd [1974] 1 WLR 1133; [1974] 2 All ER625Northern Engineering Industries plc, Re [1994] BCC 618 (CA)Punt v Symons & Co Ltd [1903] 2 Ch 506Quinn & Axtens v Salmon [1909] AC 442Rights and Issues Investment Trust Ltd v Stylo Shoes Ltd [1964] 3 All ER 628Russell v Northern Bank Development Corporation Ltd [1992] 1 WLR 588 (HL); [1992] 3 All ER161 (HL)Shuttleworth v Cox Bros & Co (Maidenhead) Ltd [1927] 2 KB 9 (CA)Sidebotham v Kershaw, Leese & Co [1920] 1 Ch 154 (CA)Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701Companies Act 1985: ss2, 4, 6, 9, 14, 16, 17, 18, 42, 125, 126, 127 and 128Companies Act 1989: s110(2)Self-Study Questions1 Distinguish the memorandum from the articles.2 Does the s14 contract bind the members and the company?3 Does the s14 contract bind the members inter se?4 Can a company alter its objects by an ordinary resolution?5 What steps can a shareholder take if he wishes to prevent analteration to the objects clause becoming effective?Sample Questions1 Section 9 of the Companies Act 1985 permits a company to alter or add to its articles by specialresolution. What limitations, if any, does the law place on the exercise of this power?(Wolverhampton LLB by Distance Learning, September 2000, Question 5.)2 a In what ways and subject to what limitations may a company alter its articles of association? bPotter is the managing director of Ceramics Ltd and holds 25 per cent of the company’s shares.The articles of the company contain a clause appointing him director for life.The other directors of the company have discovered that Potter has not accounted for money receivedon the company’s behalf and is a major shareholder in a company which is directly in competitionwith Ceramics Ltd.

The directors seek an alteration of the company’s articles to restrict the managing director’s powersby requiring him to obtain the board’s approval for major policy decisions. Advise the directors.(Wolverhampton LLB by Distance Learning, May 1999, Question 4.)3 Brush Ltd has three directors, Andrew and David who each own 40 per cent of the company’sissued share capital, while the remaining 20 per cent is owned by Roger.Andrew and David have discovered that Roger has been carrying on business in direct competitionwith Brush Ltd. The articles of association of Brush Ltd have now been altered to include thefollowing new articles.‘Any shareholder who competes with the company, may be required to sell his/her shares to a personnominated by the directors of the company.’‘Any member who intends to sell his/her shares, or is required to sell his/her shares, shall informthe directors, who will take the said shares equally between them at a fair value, as determined bythe company’s auditors.’Following the alteration of the articles, Andrew and David gave notice to Roger requiring him tosell his shares to Eric, a person nominated by the directors. Roger has refused to do so and statesthat he considers the new articles to be unlawful and that he has decided to sell his shares to Elizabeth.Advise Roger.(Wolverhampton LLB by Distance Learning, January 2001, Question 4.)

Study Unit 6 Suggested minimum study hours: 10TopicMeetingsIntroductionThe will of a company’s members is now normally expressed at a general meeting when they mayvote for or against any resolution proposed. The will of the majority of the members usually prevailsand binds every member.Objectivesa To examine the various ways in which the general meeting can control the activities of directors.b To consider the position of the individual shareholder at a general meeting. What effective wayscan he make points and control the affairs of the company at the general meeting?c To contrast the position of the board of directors with that of the ordinary members in calling andconducting general meetings. What advantages do the directors have in deciding the contents ofthe agenda at such meetings?d To consider the practical implications involved in an ordinary member trying to pass a resolutionto which the directors object.Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, butyou may wish to refer to them to further your understanding. Gower and Davies: the Principles ofModern Company Law, Davies –Relevant Chapter(s)Case law and statutesBaillie v Oriental Telephone Co Ltd [1915] 1 Ch 503Barron v Potter [1914] 1 Ch 895British Union for the Abolition of Vivisection, Re [1995] 2 BCLC 1Bushell v Faith [1970] AC 1099Cane v Jones [1980] 1 WLR 1451Debtor, a (No 2021 of 1995), Re [1996] 1 BCLC 538; [1996] 2 All ER 345Duomatic Ltd, Re [1969] 2 Ch 365El Sombrero Ltd, Re [1958] 3 All ER 1Harman & Another v BML Group Ltd [1994] 1 WLR 893 (CA)Moorgate Mercantile Holdings, Re [1980] 1 WLR 227; [1980] 1 All ER 40

Northern Counties Securities Ltd v Jackson and Steeple Ltd [1974] 1 WLR 1133; [1974] 2 All ER625Pedley v Inland Waterways Association Ltd [1977] 1 All ER 209Read v Astoria Garage (Streatham) Ltd [1952] Ch 637Ross v Telford (1997) The Times 4 JulySouthern Founderies (1926) Ltd v Shirlaw [1940] AC 701Whitchurch Insurance Consultants Ltd, Re [1994] BCC 51Companies Act 1985: ss9, 14, 123, 282–285, 291–295, 303, 304 and 371Company Directors Disqualification Act 1986: ss1–11Companies (Single Member Private Limited Companies) Regulations 1992Deregulation (Resolutions of Private Companies) Order 1996 (SI1996/1471)Self-Study Questions1 Distinguish between an ordinary, an extraordinary and a special resolution. What notice is neededfor each and in what circumstances will each be used?2 Distinguish between an annual and an extraordinary general meeting.3 What is a proxy?4 What is a quorum?5 What is the effect where the requirements of notice are waived by the members of the company?6 Under what circumstances will the court order that a single person is to constitute a meeting?Sample Questions1 ‘In spite of the inclusion of s303 in the Companies Act 1985, it may still be very difficult, if notimpossible, for a company to remove one or more of its directors.’Do you agree?(Wolverhampton LLB by Distance Learning Question.)2 William and Mary are the sole shareholders and directors of Orange Ltd, a company regulatedby Table A articles of association. William holds 70 per cent of the shares, while Mary holds theremaining 30 per cent.William dies and leaves his shares to his son John. Mary, who dislikes John, refuses to registerthe transfer of the shares. a Can John take any steps to have his name placed on the register ofmembers? b Assuming that John is successful in registering the shares, he now wishes to putforward the following resolutions at a general meeting, which he wishes to call as soon as possible:i that John be appointed a director of the company; ii that Mary be removed from office as adirector of the company. Mary has stated that she will not call the meeting or place these resolutionson the agenda of any future meetings. Advise John. c Assuming that the above resolutionshave been placed on the agenda of the meeting, Mary then tells John that she has no intention ofattending this meeting or any other meeting that is convened.Advise John. d Had Mary attended the meeting, but had left before the resolutions were put to themeeting, can John pass the resolution and remove Mary as a director of the company?(Wolverhampton LLB by Distance Learning, September 2000, Question 3.)

3 John Smith is a shareholder in Alpha Ltd and is concerned that the company has not held anannual general meeting for the past two years. Is there any action that can be taken to ensure thatsuch a meeting is held?Subsequently a meeting is called for 30 May 2000. Unfortunately the company secretary does notnotice a printer’s error, which states that the meeting is to be held on 30 June. All the shareholdersattend on 30 June 2000.Are the proceedings valid?John Smith enters into a contract on 10 May to sell his shares to Jonathan Brown. Although thetransfer has not been completed or registered, the company secretary nevertheless sends noticeof the annual general meeting to Jonathan, rather than to John. Explain the effect (if any) of thesecretary’s action on the proceedings of the annual general meeting.(Wolverhampton LLB by Distance Learning, May 2000, Question 5.)

Study Unit 7 Suggested minimum study hours: 10TopicSharesThis Unit covers material contained in the Learning Project.IntroductionShare capital is the proprietors’ contribution to, and stake in, the company. We shall consider therules and regulations which govern the issuing, purchasing and transfer of company shares.Objectivesa Read and consider the cases which consider the nature of shares anddebentures. Are there any clear definitions of either?b Consider the relative advantages and disadvantages of the various types of company securityavailable to an investor. Do these advantages and disadvantages vary according to the financialfortunes of the company?c Consider the provisions of ss263–281 CA 1985 and how these have altered the common lawrules on the payment of dividends.d Note the different rules now applied to payment of dividends by public and private companiesrespectively. Compare and contrast these provisions.e Consider the purpose of the share certificate in modern company law and (i) the doctrine of estoppelby share certificate and (ii) the effect of a forged share certificate.f Look at the decisions on restrictions on the transferability of shares. Are these important today inthe case of (i) public companies or (ii) private companies?g Consider the procedure for the transfer of shares in the case of publicly quoted companies.Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, but you may wish to refer tothem to further your understanding. Gower and Davies: the Principles of Modern Company Law,Davies –Relevant Chapter(s)Case law and statuteSHARES – CLASSIFICATIONBirch v Cropper (1889) 14 App Cas 525Borland’s Trustee v Steel Brothers & Co Ltd [1901] 1 Ch 279Carruth v Imperial Chemical Industries Ltd [1937] AC 707Chatterley-Whitfield Collieries Ltd, Re [1949] AC 512 (HL)

Cumbrian Newspapers Group Ltd v Cumberland and WestmorelandHerald Newspaper and Printing Co Ltd [1986] 2 All ER 816Greenhalgh v Arderne Cinemas [1946] 1 All ER 512Holder’s Investment Trust Ltd, Re [1971] 1 WLR 583House of Fraser plc v ACGE Investments Ltd and Others [1987] BCLC 478Isle of Thanet Electricity Supply Co Ltd, Re [1950] Ch 161Northern Engineering Industries plc, Re [1994] BCC 618Oakbank Oil Co v Crum (1882) 8 App Cas 65Prudential Assurance Co Ltd v Chatterley-Whitfield Collieries Ltd [1949] AC 512Saltdean Estate Co Ltd, Re [1968] 1 WLR 1844; [1968] 3 All ER 829Scottish Insurance Corporation Ltd v Wilsons & Clyde Coal Co Ltd [1949] AC 462Thundercrest Ltd, Re [1994] BCC 857 (Ch D)White v Bristol Aeroplane Co [1953] Ch 65Will v United Lankat Plantations Co Ltd [1914] AC 11Companies Act 1985: ss14, 121, 125, 127, 129, 135, 137 and 140SHARES – TRANSFER AND TRANSMISSION OF SHARESBahia & San Francisco Railway Co, Re (1868) LR 3 QB 584Balkis Consolidated Co v Tomkinson [1893] AC 396Bede Steam Shipping Co Ltd, Re [1917] 1 Ch 123Bloomenthal v Ford [1897] QB 156Hackney Pavilion Ltd, Re [1924] Ch 276Royal Bank of Scotland plc v Sandstone Properties Ltd [1998] 2 BCLC 429Ruben v Great Fingall Consolidated [1906] AC 439Sheffield Corporation v Barclay [1905] AC 392Smith and Fawcett Ltd, Re [1942] 1 Ch 304Swaledale Cleaners Ltd, Re [1968] 1 WLR 1710; [1968] 3 All ER 619Companies Act 1985: ss22, 129, 182–189, 263–281 and 352–362SHARES – DIVIDENDSAmmonia Soda Co Ltd v Chamberlain [1918] 1 Ch 266Dimbula Valley (Ceylon) Tea Company Ltd v Laurie [1961] Ch 353Exchange Banking Company, Flitcroft’s Case, Re (1882) 21 Ch D 519Foster v New Trinidad Lake Asphalt Company Ltd [1901] 1 Ch 208Lee v Neuchatel Asphalte Co (1889) 41 Ch D 1Wood v Odessa Waterworks Co (1889) 42 Ch D 636Self-Study Questions1 What is a share? Does a shareholder have any interest in the company’s property?2 What is a preference share and how does it differ from an ordinary share?3 Are preferential dividends cumulative? Would the absence of such a provision in the memorandumor articles be significant?4 What is a redeemable preference share?5 Is a share certificate a document of title or mere evidence of title?6 Is there any difference in the effect of (a) a forged transfer and (b) a forged share certificate?Sample Questions1 a Distinguish between the issue of shares at a discount and the issueof shares at a premium.b The directors of Jumbo plc wish to know whether the company may:

i loan money to John, who has been co-opted to the company’sboard of directors, to purchase qualification shares in the company;ii loan money to its employees to enable them to purchase sharesin the company’s employee share scheme;iii loan money to its employees and directors to enable them to purchase the company’s shares.Advise the directors.c Outline the procedures when a shareholder in a private company wishes to:i transfer part of his fully paid shareholding in the company to a third party;ii transfer all of his fully paid shareholding in the company to a third party.(Wolverhampton LLB by Distance Learning, January 2001, Question 1.)2 a Distinguish between the transfer and transmission of shares. b Georgina is considering an investmentin Transcendo plc, whose ordinary and preference shares are quoted on the Stock Exchange.Advise her as to the possible advantages or disadvantages in purchasing either of these types ofshares.c Maintenance of a company’s share capital is one of the fundamental principles of company law.Explain how the provisions of the Companies Act 1985 helps to achieve this objective in respectof:i reduction of capital (s135);ii serious loss of capital (s142).(Wolverhampton LLB by Distance Learning, May 2001, Question 1.)

Study Unit 8 Suggested minimum study hours: 10TopicMaintenance of Share CapitalThis Unit covers material contained in the Learning Project.IntroductionIt is essential for a company to maintain its share capital for the benefit of the company, its membersand its creditors.Objectivesa To consider the rationale behind the rule that a company must not issue shares at a discountand how this has been weakened, if at all.Look at the provisions of ss99–116 CA 1985 and their effect on this principle.b To examine the principles which have evolved to ensure that a company’s capital is maintained.Consider the weaknesses in these principles and the effect of ss142–149 CA 1985.c To consider the provisions of ss151–158 CA 1985. Are the exceptions to the general principlesin s151 clear?Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, butyou may wish to refer to them to further your understanding.Gower and Davies: the Principles of Modern Company Law, Davies –Relevant Chapter(s)Case law and statutesAcatos and Hutcheson v Watson [1995] 1 BCLC 218Arab Bank plc v Mercantile Holdings Ltd and Another [1993] BCC 816Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393Bradford Investments Ltd (No 2), Re [1991] BCC 379Brady v Brady [1989] AC 755Heald v O’Connor [1971] 1 WLR 497Henry Head and Company Limited v Ropner Holdings Limited [1952] Ch 124Holder’s Investment Trust Ltd, Re [1971] 1 WLR 583Ooregum Gold Mining Company of India v Roper [1892] AC 125Park Business Interiors Ltd v Park [1990] BCC 914

Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555Wragg Ltd, Re [1897] 1 Ch 796Companies Act 1985: ss 80, 84, 85, 99–116, 130–134 and 142–162Financial Services and Markets Act 2000: s75(1)Self-Study Questions1 Distinguish between share capital, loan capital, capital reserve, reserve capital, uncalled capitaland capital redemption reserve fund.2 What is the difference between uncalled capital and reserve capital?3 Can a public company issue shares in consideration of work to be done or services to be performed?4 Can a subscriber to the memorandum pay for his shares in kind?5 If a company issued its shares originally at £1 each, their nominal value, but they are now worth£5, must it issue further shares at £5 each or only £1?Sample Questions1 ‘The rules governing use by a company of its capital are strict and effective.’Discuss.(Wolverhampton LLB by Distance Learning Question.)2 Twit and Stooge, the directors and shareholders in Plantations plc, hold 150,000 of the 250,000£1 shares in the company. In 1990 the company was in financial difficulty and their bankers refusedto help.Hook and Crook heard of their problems but were only prepared to help if they could purchaseshares in the company. Consequently, Hook and Crook were allotted the remaining 100,000shares. Hook supplied the company with raw materials and it was agreed that the £50,000 £1shares he received would be paid for as follows:a as to £10,000 by way of set-off against the value of raw materials already supplied;b as to £20,000 by the company immediately purchasing raw materials to that value from Hook;c the remaining £20,000 to be borrowed from Cash Ltd, a subsidiaryof Plantations plc, to pay for the shares, Hook repaying it within 12 months.It was further agreed that the company would buy all its rawmaterials from Hook over the next five years as part of this package.Crook loaned the company £150,000 also on the understanding that heobtained 50,000 £1 shares; of the money he advanced it was understood that £40,000 would berepaid to him immediately and regarded as payment for the shares. The company recently wentinto liquidation.Advise the liquidator.(Wolverhampton LLB by Distance Learning Question.)3 Explain and evaluate the law restricting the power of companies to assist people who wish topurchase that company’s shares.(Wolverhampton LLB by Distance Learning Question.)

Study Unit 9 Suggested minimum study hours: 10TopicRaising Capital – Offer of Shares to the PublicIntroductionVarious regulations are essential to ensure that the market for shares is regulated.Objectivesa To consider the procedures and regulations which must be observed in making public issues ofshares.b To examine the remedies which are available to a shareholder who haspurchased shares on the strength of misleading listing particulars or prospectus.c To examine the regulatory mechanisms provided for by the Financial Services and Markets Act2000.Essential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)General ReadingThese titles have not been supplied and are not essential reading, butyou may wish to refer to them to further your understanding.Gower and Davies: the Principles of Modern Company Law, Davies –Relevant Chapter(s)Case law and statutesAl-Nakib Investments (Jersey) Ltd v Longcroft [1990] 1 WLR 1390Andrews v Mockford [1896] 1 QB 372Caparo Industries plc v Dickman [1990] 2 WLR 358Derry v Peek (1889) 14 App Cas 337Hedley, Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317Peek v Gurney (1873) 6 HL 377 (HL)Possfund Custodian Trustee Ltd v Diamond [1996] 2 BCLC 665; [1996] 2 All ER 774R v Feld [1999] 1 Cr App R(S) 1R v Kylsant [1932] 1 KB 442Smith New Court Securities Ltd v Citibank NA [1996] 3 WLR 1051Companies Act 1989: s131Financial Services and Markets Act 2000Misrepresentation Act 1967: ss1 and 2Theft Act 1968: s19

Self-Study Questions1 What are the regulations governing the public issue of securities?2 What are ‘the listing particulars’? What must be specified therein?3 What sanctions are provided by the Act against those who are responsible for false or misleadingparticulars (both civil and criminal)?4 When is a prospectus used? What must it contain?5 Who can avail of the remedies provided by the Act?Sample Questions1 Jo owns a catering business which supplies sandwiches to hungry company executives. Thebusiness has been a huge success and she decides to apply for a Stock Exchange listing for acompany called Royal Bite plc and shares are issued to the public. Together with her friend Harry,who is an expert on healthy eating, she issued listing particulars in which the prospects for thecompany are described as ‘wonderful’. The listing particulars contain a paragraph by Harry praisingthe ingredients used in the food as particularly healthy. Two weeks after the successful flotationof the company, the Minister of Health condemns one of the ingredients used by Jo in hersandwichesas likely to cause brain damage. Harry had known of some research which had reached this conclusion,but he did not believe it. Jo had not known of this research until the day before theMinister’s statement, on which day she sold all her shares in Royal Bite plc. The shares lost 60pence in value on the day of the Minister’s statement. Angela had bought 200 shares on thelaunch of the company; Michael bought 200 shares on the Stock Exchange, just before theMinister’s statement.Advise all the parties of their rights and liabilities.(Wolverhampton LLB by Distance Learning Question.)2 Cedric and Isabel work in a tourist office. For a long time they thought about forming a limitedcompany to commence business as travel agents. They both had substantial financial resourcesand last week found ideal premises from which they could trade.Advise them:a on the procedures necessary to incorporate a public limited company; b as to any capital requirementswhich they must meet before the company can be incorporated as a public limitedcompany; c as to whether they can use the name Thomas Cook (Windsor) plc Travel Agents; d asto any further procedures which must be satisfied before the company can commence trading.(Wolverhampton LLB by Distance Learning, May 1999, Question 2.)

Learning Project Suggested minimum study hours: 50In common with all the modules that form part of the LLB by Distance Learning programme thismodule involves a Learning Project. Undergraduate students at the University of Wolverhamptonare required to demonstrate that they are capable of independent research before they can berecommended for the award of a degree. For distance learning students this is assessed by referenceto the Learning Project you undertake in respect of each module. It requires you to pay specificattention to a list of defined reading. Commonly covering a range of cases and statutes youare required to demonstrate your mastery of the area(s) of law concerned by undertaking a compulsoryquestion as part of the end of module examination. This will commonly take the form of anextended legal problem and require you to demonstrate not only that you understand the areas oflaw concerned but are able to apply them clearly and without error. It could also take the form ofan essay question requiring you to demonstrate an ability to comment on linked areas of law. Particularattention will be paid to the accuracy with which you cite the law and the arguments ofthose responsible for its development. You will also be expected to demonstrate that you understand,and have not been confused by, the ambiguities and contradictions that exist in the undergraduatestudy of the law.This question, which will change with each examination paper, will account for 50 per cent of theoverall grade and require you to devote one hour of the two-hour examination period to it. Pleasenote that for each examination you are allowed 15 minutes’ reading time on top of the two hoursyou have to write your answers. You may also take into the examination the relevant Cases andMaterials and Statute Book. Please note that these may not contain any additional notes or markings.

Learning Project for Company Law 1: Shares and Maintenance of Share CapitalEssential ReadingThese titles have been supplied as part of your study materials.Company Law by John Lowry and Alan Dignam OUP 2006Statutes on Company Law 2007-2008Cases and Materials on Company Law (Andrew Hicks and S Goo)Guidance notesThis Learning Project is covered by Units 7 and 8 in your Module Planner. In carrying out yourreading and research you should have special regard to the following key points.• Types and classes of share capital.• Increase, alteration and reduction of capital.• Variation of class rights.• Issue of shares.• Transfer and transmission of shares.Case law and statutesPlease refer to the materials listed in Study Units 7 and 8.Sample Questions1 a Distinguish between the issue of shares at a premium and theissue of shares at a discount.b Inka plc has a fully authorised share capital of £200,000 dividedinto 150,000 ordinary £1 shares and 50,000 £1 6 per cent nonparticipating preference shares. The preference shares have aright to preferential payment of capital in a winding-up.The directors wish to increase the authorised share capital to£300,000 and make a new issue of 75,000 ordinary shares and25,000 preference shares on the same terms as the existing shares.i What procedures must be followed to increase the share capitaland for the allotment of the new share issue?ii John already owns 10,000 ordinary shares and Henry owns 5,000 preference shares. Whatrights (if any) do they have inrespect of the new share issue?c The new shares were subsequently issued. There were no profitsavailable for distribution in the year ended 30 June 1999 but therewere £80,000 profits available for distribution in the year ended 30June 2000.i How should these profits be distributed between the variousclasses of shareholders?

ii Would your answer differ if the preference shares were noncumulative?d What provisions are found in the Companies Act 1985 in respect ofthe payment by the directors of a dividend out of a company’scapital?(Wolverhampton LLB by Distance Learning, September 2000, Question 1.)2 a What procedures must be followed by a company if it wishes to:i reduce its capital; andii issue shares at a premium.b Albert has been invited to join the board of directors of Primo Ltd. The company’s articles of associationrequire each director to hold 2,000 qualification shares. As Albert does not have themoney to purchase the shares, the company is willing to loan him the money.i What procedures should be followed to effect the loan?ii What action (if any) may be taken against the company by a shareholder who disapproves of theloan?c Simon (who cannot now be traced) stole Bertrand’s share certificate for 500 shares in Primo Ltd.Simon then sold the shares to Charles and forged Bertrand’s name on the share transfer form.Charles duly sent the share certificate and share transfer form to Primo Ltd. The company secretaryof Primo Ltd duly wrote to Bertrand asking him whether he had any objection to the transfer toCharles being effected. Bertrand did not bother to reply to thisletter.Charles subsequently sold the shares to Dawn in whose name the shares are now registered.Advise Bertrand:i as to his entitlement to the shares;ii as to where any loss occasioned by the events must fall.(Wolverhampton LLB by Distance Learning, September 2001, Question 1.)

Practice Question and SuggestedAnswerThe following test is designed for practice only and does NOT count aspart of the assessment regime. A Suggested Solution is, however,offered in the following section. Students are advised not to consultthis solution until they have completed the test. It is expected that youwill return your answer to the College for marking and feedback.Unless you undertake such work you will not gain an insight into youracademic strengths and weaknesses before you attempt theexamination.Before attempting your answer, please ensure that you understandthe assessment criteria explained in the Award Guide, and theguidance contained in the section of the Module Planner headed ‘Skillsto be Developed and Examined’.QuestionBarnaby and Alexon are presently carrying on business in partnership. They are thinking aboutincorporating but are not sure about the different options which are available. They also need toknow what documentation is involved and what the quickest method of incorporation is. Theywould like to use the name ‘Big Company’ and also need to know in general whether there are anyrestrictions on the choice and use of a company name.Barnaby is to be issued with 100 £1 ordinary shares issued at nominal value and 500 ‘A’ preferenceshares to be issued at a premium of 50p per share. He would like to know what his maximumliability would be in the event of the company entering insolvent liquidation. Alexon wasrecently involved in the management of another company called Starlight Limited. Whilst she wasin the process of forming this company she sold some assets to the company at an inflated priceand also entered into contracts on behalf of the proposed company, which the board of Starlighthas since refused to adopt. Alexon believes that as she was never appointed as a director of thiscompany that there should be no problem. She is also angry that the board has refused to pay hercompany’s formation expenses. Advise Barnaby and Alexon.(WolverhamptonLLB by Distance Learning, May 2001, Question 2.)Suggested Answer to Practice QuestionNB: Do not consult this solution until you have completed the test.Outline Answer• Various types of companies and other types of business organisations.• Necessary documentation delivered to Registrar – memorandum, articles, statement of directorsand secretaries, statutorydeclaration.• Index of names.• Various statutory restrictions on names.• Common law restriction – tort of passing off.• Maximum liability as shareholder – nominal value of shares.• Alexon – sale of assets by promoter.• Personal liability for prior incorporation contracts.• No claim for company’s formation expenses.Answer

Note: this answer is based on one written by a distance learning student covering the question setas part of an examination.There are a number of forms of business, one being the partnershipthey currently have, where the company has no legal personality andthe two partners are liable for debts. There is a limit of 20 partners ina partnership, with the exception of professional organisations.There is a limited partnership, where two partners must be liable,and the others have limited liability, again with no legal personality.There is a sole trader, who can carry on business as he wishes, butwith full liability.There is an unincorporated association, whose members (not morethan 20) have full liability.The Limited Liability Partnership Act 2000 was introduced, which will allow limited liability partnerships(LLPs) to be formed in 2001. This allows all the partners to have limited liability, and thepartnership has legal personality, although two partners are general associates, who deal with alladministration. Then there is the distinction between a private or public company. A public companyhas a minimum of £50,000 capital reserves and takes a while to get incorporated. A privatecompany can be unlimited, allowing secrecy of accounts, or limited (Ltd) either by guarantee (acertain limit will be stated as maximum liability) or by shares. If Barnaby is issued with 100 £1 ordinaryshares at nominal value and 500 ‘A’ preference shares at a premium of 50p, then the maximumliability would be the value of the shares he owns, plus any premium. If the shares are fullypaid, he will be liable to pay nothing extra. If the shares are partly paid (ie 25 per cent of the valueplus the premium) he would be liable for the amount not yet paid. The documents required to setup a company are elaborated in s10 CA 1985. These are the memorandum, stating the objects ofthe company, the name of the company and the registered office (s2). It must also include thenumber of shares and to whom they are issued. A copy of the company articles must be sent tothe Registrar, as well as a statement as to the first Director and Secretary of the company, Form10 and Form 12. The quickest method of incorporation would be to form a private company limitedby shares. Restrictions on a company name are covered by s26 CA 1985. Briefly, the name mustnot include the words Ltd or plc, except at the end, if it is a limited, or public limited, company. Thename must not be the same as an existing company, and it must not constitute a criminal offenceor be offensive.Alexon appears to have been a promoter of Starlight, and as such, when she sold assets to Starlightat an inflated price, these were secret profits. Whilst secret profits can be made, they must bedisclosed to all members of the company, perhaps by way of a prospectus, otherwise the profitscan be claimed back from Alexon: see Gluckstein v Barnes (1900). Alexon entered into contractson behalf of Starlight, and whether she is a Director or not, she will be liable. Formation expensesare between her and the company. The company cannot enter into a contract, because it does notexist, and a further contract, ratified, could only be done under deed. Normally a promoter will alsobe a Director and this problem would not arise. The only other course would be to look atStarlight’s articles, to see if anything is there that would assist Alexon.Marker’s comment on Student AnswerA well written, competent answer which deserved an Upper Second award. Additional detail regardingthe name of the company would have enhanced the answer.

RevisionWhat to reviseConsider carefully what you have been told about the format of the examination. How many questionswill you be required to answer in what length of time? Work out how long you are likely tohave to write an answer to any one question.Look at past exam papers. A sample can be accessed via the School of Legal Studies websitewww.wlv.ac.uk/sls. They may help you to identify the questions which are most likely to appear onyour exam; and on which you can concentrate your revision. This is known as question spottingand, although this is not advisable, it may sometimes be necessary. If you have to do this, youshould revise two additional topics just in case: the question on one of the topics on which youhave concentrated most may be phrased in such a way that you are not certain how to answer it.It is, however, safer to deal with every topic in the module so that you are prepared for all questions.By looking at past exam papers you may also be able to determine whether certain topics tend tobe examined by way of problem scenarios or general discussion questions. Structure your revisionto accommodate the different approaches those two different types of question require.Look closely at the topics covered by the module. Those topics which have been given the greatestemphasis are a good bet to appear in the exam.The question in the Learning Project is compulsory so make sure that your revision is thorough onthe topic, or topics, it covers.Planning your revisionThe best method of revision is to revise continuously throughout your study of a module, butwhether you revise continuously or prefer the last minute approach, try to relax on the day beforean exam. To do well you need to be both physically and mentally fit.Well before the exam period make yourself a revision calendar. Make sure that the revision periodyou plan is long enough to cover all of the modules you have studied, and gives you regularbreaks away from your studies. You need to start your revision at least two weeks before the examinationperiod. It is not wise to plan to revise for more than an hour at a time without a shortbreak. You should build in some days in which you put revision aside altogether and do somethingwhich will take your mind off the upcoming exam period.Don’t just divide the revision period equally between topics. Make a realistic appraisal of whichtopic(s) you are weakest in and plan to give them the most time. In deciding how much time togive each topic you should also take into account how much the exam counts towards your overallmark. In other words, plan your revision to do best on exams which will give you the most benefitin terms of your overall results.Do not concentrate all your revision of any one topic in a solid block. You will find that your concentrationwill be better if you rotate your revision from topic to topic.Plan your revision of any one topic in stages. The first stage is to acquire a knowledge of the topic.This involves re-reading your notes and whatever is necessary in your books. The second stage isto break that knowledge down into easily remembered key components. The third stage is to honeyour ability to identify issues and relate them to those key components. This is best accomplishedby writing answers to past exam questions.

How to reviseIf you have any general problems with your studying, don’t just sit there hoping it will come right inthe end; contact the Module Leader or the College.There are a number of stages in the revision process. First you have to ensure that you have anadequate knowledge of the topics. This is a matter of re-reading notes and filling in gaps by readingrelevant sections of your Textbook or other materials until you have reached the point whereyou understand the material being dealt with.While you are reviewing your notes and other study materials, you should be identifying and markingkey points which you can return to when you start to make your revision notes.Remember: revision can only be effective if it is based on a previously acquired basic knowledgeand understanding of the topics.The second stage of revision is to create a set of revision notes.These will be aimed at (1) setting out key points and (2) relating these to each other in such a waythat they form a coherent picture of a particular topic (3) identifying key cases and/or statutory provisionswhich you need to know details of.There are numerous ways of structuring revision notes. Which you choose will be a matter of personalpreference. The basic aims, however, are to create a set of notes which you can reviewquickly many times; and one from which you can retain a vivid mental image so that you will beeasily able to recall them in the examination.Therefore your revision notes should be made up of key words and phrases. Each entry in thenotes should represent a condensation of information about the topic at hand. Strike a balancebetween brevity and comprehensiveness. Some concepts may be too complicated to rememberwithout a detailed note. Others readily lend themselves to summing up in a phrase of even a wordor two. A rule of thumb is to confine all the revision notes on one topic to one page or less of A4paper.Using different colours for different topics, or writing the notes so that they create a distinctive patternon the page, is a way of creating a vivid mental image of your notes. During the exam youmay be able to recall the particular information you need by calling up a ‘picture’ of the information.A stepped outline or a spider diagram are two of the ways you can create a pattern which willhelp you to recall information by focussing on the image and the way it was written down. Spiderdiagrams are especially useful for creating an image of the way ideas or rules link together.Your friends may think you have become very eccentric but it is a good idea to stroll about yourroom reciting out loud the contents of a page of revision notes. This, after all, is how actors learntheir lines before a performance, and you are doing the same thing when you set out to learn yourrevision notes before an exam.You may be tempted to shortcut the process of building up a set of your own revision notes bybuying one of the many revision guides which are available. These can be extremely useful to giveyou a very condensed overview of a topic, but remember this: what makes for exam success isdisplaying to the examiner your own knowledge of the topic. The only way to create your ownknowledge of the topic is to create your own set of revision notes using all those other sourcesThe third stage of revision is self-testing. Pick a question from a past exam – and this is wherehaving made a considered choice about which topics to revise is essential – and write an answerto it under ‘exam conditions’: ie taking the length of time you would be given to do the question in

the exam. Then go back over your revision notes on that topic and see what you have left out,what you did wrong and what you put in that was not really relevant to the question asked.You may want to return to your original notes from lectures and reading and have another look atthat material. After half an hour or more break, pick another question on the same topic and writean answer to it. Go through the same review process again. Repeat the whole process once ortwice more. The advantages of doing this will soon become apparent. You will identify weaknessesin your knowledge and/or understanding. You will see how some components of an answer to aquestion on a particular topic will re-appear over and over again no matter how the question isworded, and you will have written those bits down often enough that you will not have to spendtime in the exam trying to work out how to phrase that part of your answer.The benefit of self-testing is enormously enhanced if you do it as part of a group. Three or four ofyou working together will amongst you have a very comprehensive knowledge of any topic. Whatyou are weak on, you can pick up from one of the others and vice versa. There is also the psychologicalboost which comes from working as part of a team. You will find that some of the thingsyou thought it was important to write about completely eluded other members of the group. Also,you will not have seen some important point which they did. Discussing all of your answers togetherwill help you to craft a complete answer to all of the aspects of the question. If you are not incontact with fellow distance learning students, ask members of your family or friends to test you.As well as helping you, this will give them a valuable insight into how much your studiesmean to you and the hard work involved.Taking the ExaminationHints for Answering QuestionsThe very first thing you must do is to read the whole question. If the question is a problem:DOAsk yourself:• Why am I being asked to advise this person?• What has gone wrong?• What are the areas of law involved?If the question is an essay:DOAsk yourself:• What area of law does the essay cover?• Which part of that area of law is the essay asking me to discuss?• Which points do I have to focus on in answering the question?DO NOT, IN EITHER TYPE OF QUESTION• Start writing before you have read the whole question.• Identify one area of law and write all you know about that area without putting it into the contextof the question.The next step is to write an outline plan of your answer. In this plan, you should identify the mainpoints in the problem. If you do not want the plan to be taken into account in your answer, thencross it through and your examiner will ignore it. When you are writing your answer, follow yourplan. This will help you avoid discussing areas of law which are not relevant to the question. It willalso help you ensure that you cover all the points raised in the question and do so in a

logical, reasoned way. After you have read the question and written your outline plan you shouldre-read the question and then attempt the answer.WRITING THE ANSWERIn writing your answer, start at the beginning and work through to the end. Make sure that youdeal with each issue raised and that you apply the law to the relevant points. Reach a conclusionat the end. Do not start with your conclusion as you may find, part of the way through your answer,that you realise your original conclusion was wrong and you will have to start again.Always give authorities for your answers. These authorities will be statutes and/or cases.DO• Address the issues from the start of your answer.• Start at the beginning and work through to the end.• Reach a conclusion at the end.• Relate your answer to specific points in the question.• Give authority for every point of law you make.• Write clearly and in good English.• Time your answers.DO NOT• Write all you know about the area before you start actually answering the question; you will onlyhave to write it out again in dealing with the specific points in the question.• Reach a conclusion at the beginning.• Move away from the structure of your outline plan.• Give unsupported statements of law.• Spend so long answering one question that you do not have enough time to answer the rest.• Write in note form (unless you have spent too much time on your previous answers and are leftwith insufficient time to write a full answer).• Copy large amounts of material from the books you are allowed to take into the examination.Make sure that you put all quotations in quotation marks otherwise you may be thought to havebeen cheating.

Module QuestionnaireCompany Law 1The School of Legal Studies and Holborn College attach great importance to your views. Wewould, therefore, be grateful, if now that you have finished studying this module, you would answerthe following questions and return them to the address give below. Your answers will be consideredby the distance learning teaching team and used in updating teaching materials.1 What two things did you find most useful about the materials you were provided with for thismodule?_____________________________________________________________________________________________________________________2 What two things did you find least helpful about the materials you were provided with for thismodule?_________________________________________________________________________________________________________3 Please identify any typographical errors you encountered in using this planner (please make referenceto appropriate page numbers).___________________________________________________________________________________________Return to:External Programmes AdministratorSchool of Legal StudiesUniversity of WolverhamptonArthur Storer BuildingMolineux StreetWolverhamptonWV1 1SBUnited KingdomYou may if you wish e-mail your answers to in4655@wlv.ac.uk