The unfair prejudice petition has always been regarded as the easier and more flexible option for minority shareholders’ protection compared to the statutory derivative action. The restrictive leave requirements under the statutory derivative claim where the concept of prima facie, good faith and ratification have been interpreted within the confines of the origins in the case of Foss v Harbottle do not add any appeal the statutory derivative claim. Further, the approach in relation to granting indemnity costs orders which is rather limited does not in any way encourage any potential claimant to pursue a derivative action. Recent cases which allows corporate relief to be obtained via unfair prejudice petition and even the possibility if recovering costs under and unfair prejudice petition has further relegated the significance of the derivative action. This essay will examine the main cause of the demise of the derivative claim which is the possibility of pursuing a corporate relief and even costs via an unfair prejudice petition, a relief and order that was initially only available via derivative action. Further this essay will discuss as to how the boundaries between the statutory derivative action and the unfair prejudice should be drawn and what restrictions should be added to the unfair prejudice remedy under section 994 of the Companies Act 2006 so that the significance of the statutory derivative action can be reinstated. The distinction between an unfair prejudice petition and a statutory derivative action has always been in the nature of remedy sought by the claimant. This is arguably the point where a distinction is drawn as to whether a statutory derivative action or an unfair prejudice petition should be pursued. A d... ... middle of paper ... ... It is disappointing that Lord Scott did not take this opportunity to endorse the criteria laid down in Re Chime Corp Ltd and neither did he provide further guidance as to when the courts power under section 994 should be exercised. It was argued by Cheung the reference by Lord Scott in Gamlestaden is still a summary of principles derived from Re Chime Corp. It is submitted that the reading of the case of Gamlestaden as it is does not state any criteria to allow corporate relief in unfair prejudice petition but rather the decision just endorsed that the court “may make such order as it thinks fit for giving relief in respect of the matters complained of” under an unfair prejudice petition. This could be a cautious approach not to restrict the ability of the court to may make such order as it thinks fit which would not be available if a test is introduced.
In the case of Griggs vs. Duke Power Company the Supreme Court of the United States found the Duke Power Company liable for violating the civil rights of thirteen African American employees of Duke Power Company. This was a result of the Duke Power Company intradepartmental transfer policy requirements of a high school education and achieving a minimum scores on two aptitude tests. The intrade direct violation because the power company could not link the intradepartmental transfer policy to benefit or predict the how the employee will lead and serve Duke Power Company. Disparate treatment is the matter of proof. The plaintiff alleging direct, intentional discrimination must first be able to establish a prima facie case and second, he or she is able to establish that the employer was acting on the basis of a discriminatory motive (Caruth).The class action suit, on the behalf of the thirteen African American employees, resulted in a unanimous ruling in favor of Griggs, Duke Power Company.
Brown, D. (2012). An invitation to profile: Arizona v. united states. International Journal of Discrimination and the Law, 12(2), 117-127.
Disparate Impact arises when an employer's practices unintentionally excludes a protected class disproportionately (Player, Shoben and Lieberwitz, 1995). A "protected class" is a group of people, with common characteristics, which Congress has determined must be protected from inequality ("On-the-Job Discrimination: Gender Discrimination," 2004). This paper will analyze the landmark disparate impact case of Griggs v. Duke Power Co. (401 U.S. 424, 1971) from its beginning to its conclusion in the Supreme Court. Included will be the facts of the case and the issues detailed, as well as the history of the case from initial filing to final ruling.
Wasserman, A., & Horwitz, A. (1980). Formal rationality, substantive justice and discrimination. Law and human behaviour, 103-115.
R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] All ER (D) 1173.
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
The provisions set forth in Part IV Div I protect by imposing high monetary penalties in order to deter corporations from engaging in anti-competitive conduct. To achieve a well-balanced and healthy economy that encourages both fair competition and consumer protections, the corporation and the consumer must be aware of the relevant market they are trading in to ensure they do not breach any legislative provisions. PART TWO 5. Australian Competition and Consumer Commission v Visy Holdings Pty Ltd (No 3)
Counsel essentially attempted to re-litigate certain issues decided by the Commission, namely submitting that the applicant worker had not engaged in serious and wilful misconduct and further that the applicant worker had not attempted to deceive the employer. The Tribunal stated that permitting counsel to re-litigate those issues would be to disregard to the Commissioner's finding, and further that there is a need for judicial determinations to be final, binding and conclusive to preserve public confidence in the administration of justice. Whilst the Commission is not a Court, issue estoppel is restricted to decisions of Courts. Accordingly, the Tribunal found that the respondent was entitled to regard those issues as having been 'finally and conclusively dealt
If the claimant is successful in proving a prima facie case of disparate treatment, the burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the employee's rejection of the job seeker. If the employer is successful, the burden shifts back to the job seeker to prove that the employer's legitimate, nondiscriminatory reason for the decision is merely a pretext for discrimination. This standard can be incredibly difficult to meet. The difficulty in proving intentional discrimination necessary for a disparate treatment claim is that most employers today are quite astute and sharp about discrimination. Essentially, rather than using obvious communication directly showing a discriminatory intent, employers and employment agencies may use code words to exclude some job seekers from consideration.
Currently, directors have no prima facie entitlement to be remunerated for their work (Hutton v West Cork Railway Co 1883), but Article 23 of the Companies (Model Articles) Regulations 2008 establishes that it is for directors to decide the lev...
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
Section 188 of the Act (Labour Relations Act) stipulates that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason based on the misconduct or incapacity of the employee, or is based on the employer's operational requirements, and that the dismissal was effected in accordance with a fair procedure. Persons or Employers considering whether or not the reason for dismissal is of fair reason is in accordance with fair procedure must take into account any relevant Code of Good Practice issued in terms of Schedule 8 of the Act – as discussed here-in:
[7] Cavendish Lawcards Series (2002) Company Law (3rd edn), p.15 [8] [1976] 3 All ER 462, CA. [9] Griffin, S. (1996) Company Law Fundamental Principles (2nd edn), p.19 [10] [1990] Ch 433. [11] Lecture notes [12] Lecture notes [13] [1939] 4 All ER 116.
...h authority must be satisfied about existence of the grounds mentions in the statute. The courts are entitles to examine whether those grounds existed when the action was taken. A person aggrieved by such action can question the legality of satisfaction by showing that it was based on irrelevant grounds. Thus, the existence of circumstances is open to judicial review.