| 释义 |
derivative claim
A claim brought under section 260 of the Companies Act 2006 by a member of a company on behalf of the company for a wrong done to it. Such a claim, formerly available at common law, is an exception to the rule in Foss v Harbottle (1843) 2 Hare 461, namely, that the proper claimant to bring a claim for a wrong done to a company is the company itself. To bring a derivative claim, the member must show a prima facie case in accordance with section 261 of the Act and obtain the permission of the court to continue with the claim. Section 260 of the Act provides that the member must establish that there has been an actual or proposed act or omission involving negligence, default, breach of trust, or breach of duty by a director, former director, or shadow director of the company and that the company has a cause of action arising from such a breach. Where the court is satisfied that there is a prima facie case, it has the power, inter alia, to give directions as to the evidence to be provided by the company and, on hearing the application, to give or refuse permission to continue the claim. Under section 263 of the Act, the court must refuse to give permission where it is satisfied that a person acting in accordance with section 172 of the Act (duty to promote the success of the company) would not seek to continue with the claim (Iesini v Westrip Holdings Ltd [2009] EWHC 2526 (Ch), [2010] BCC 420), or where the act has been authorized or ratified by the company. Where this is not the case, factors the court must take into account in deciding whether to allow the claim to proceed include: whether the member is acting in good faith (Barrett v Duckett [1995] 1 BCLC 243 (CA)); the importance that a person acting in accordance with section 172 of the Act would attach to continuing the claim (Franbar Holdings Ltd v Patel [2008] EWHC 1534 (Ch), [2008] WLR (D) 220; Kiani v Cooper [2010] EWHC 577 (Ch), BCC 463; Zavahir v Shankleman [2016] EWHC 1534 (Ch), [2017] BCC 500); whether the act in the circumstances would be likely to be authorized or ratified by the company; whether the company has decided not to pursue the claim (Bridge v Daley [2015] EWHC 2121 (Ch)); whether the member could pursue a personal claim (Franbar Holdings Ltd v Patel); and the views of other members who have no personal interest (Smith v Croft (No 2) [1988] Ch 114). Any decision by the company to ratify the conduct of a director amounting to a breach of duty must be taken by the members, the votes of the director as member not counting, unless consent is unanimous (Companies Act s 239). The common law and equitable rules on acts that are incapable of ratification are preserved by the Act. The common law form of derivative claim, based on a fraud on the minority, continues to apply where the Companies Act 2006 does not apply, e.g. in respect of a limited liability partnership (Harris v Microfusion LLP [2016] EWCA Civ 1212). |