National Waste Law

National Waste Law â€Å"It is unfortunate that the difficulties of interpreting the pronouncements from the EC are compounded by the failure of the national authorities to agree a common approach to the definition of waste.† Critically assess whether case law shows a â€Å"common approach† to the definition of waste. Introduction In OSS Group Ltd v Environment Agency, an appeal case concerning the question of when lubricating oil ceased to be waste, it was apparent that the Environment Agency (the Agency) and the Department for the Environment, Food and Rural Affairs (DEFRA) held different views about the definition of waste and, specifically, when a waste ceased to be a waste. The Agencys view was that if the intended use of the material was combustion, the material remained a waste until the material had been burned, irrespective of whether the waste material was similar to a raw material. DEFRAs view was that while the combustion of waste lubricating oil was a recovery operation and therefore the waste oil would remain waste until combustion was completed, material burned as fuel that was recovered from waste lubricating oil was not being discarded, and therefore was not a waste, where the material had the same characteristics as a virgin material. The judge in the original case, Burton J, concluded that t he Agencys view was correct, and that even where a waste ceased to be waste after processing, it would revert to being a waste when burned. While the differences between the Agency and DEFRAs views may not have seemed particularly significant, in practice they resulted in a situation where a recovered substance could be both a non-waste and a waste depending upon the proposed end-use of the product. This was the situation faced by Solvent Resource Management (SRM), who produced, for onward sale, product grade distillates (PGD) from recovered solvents. As a saleable product, PGD was a non-waste; however, when the material was used as a fuel in SRMs plant, it reverted to being a waste even though there was no intention by, or requirement for, SRM to discard the material. Carnwath LJ provided some clarity in the appeal by OSS, where he concluded that the Agencys view was too narrow, and OSSs products could be burnt other than as fuel. Carnwath LJ considered that a â€Å"practical common sense† approach was required that was consistent with the aims of the WFD. He went on to conclude that: â€Å"†¦in the light of this judgment, it may be possible for [the Department for the Environment, Food and Rural Affairs] and the [Environment Agency] to join forces in providing practical guidance for those affected. It is unfortunate that the difficulties of interpreting the pronouncements from Luxembourg are compounded by the failure of the national authorities to agree a common approach.† Evidently, Carnwath LJ considered that a common approach to the definition of waste was not being taken. Through a consideration of the European and national case law relating to the definition of waste, it is intended that this paper will demonstrate that the European Court of Justice (ECJ) takes a consistent approach to the definition of waste, that being that any material or substance can be waste within the meaning of the Waste Framework Directive (WFD), while Member States and national authorities (including national Courts) do not take a consistent approach to the definition of waste. Article 1(a) of the WFD defines ‘waste as: â€Å"†¦any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard†. The categories set out in Annex I cover items that would typically be considered waste and would therefore require discarding, such as out of date or off-specification products, materials spilled or contaminated, unusable parts, and various production residues. However, the WFD ensures that the definition is wide by specifying an additional category, which refers to: â€Å"any materials, substances or products which are not contained in the above categories†. Additional information on the materials and substances that are waste is provided in the European Waste List. However, the introductory notes to the list state that â€Å"the inclusion of a material in the list does not mean that the material is a waste in all circumstances. Materials are considered to be a waste only where the definition of waste in Article 1(a)†¦is met.† Determining whether a substance or object is indeed a waste will therefore depend wholly on the waste holders intention or requirement to ‘discard the material. Varying approaches have been taken to determining whether something has been discarded, or whether the holder intends or is required to discard it. The Advocate General in his opinion in Tombesi considered that if a material was consigned to a recovery operation, it was an indication that it had been discarded and it was therefore a waste. He stated that: â€Å"Under the Directive the sole question is whether the substance in issue is subject to a disposal or recovery operation within the meaning of Annex IIA or B† The need to identify whether something had been discarded had effectively been bypassed by considering that all materials consigned to a recovery or disposal operation were waste. If it was identified that a material had been subject to an Annex IIA or B operation, it could be concluded that the material was discarded and was therefore waste. This approach was not supported in the judgment from the ECJ, however. The Advocate Generals approach in Tombesi was followed in other subsequent cases, for example Inter-Environnment Wallonie v Regione Wallone, where it was concluded that substances that were subject to a recovery process would normally be waste, and in Mayer Parry Recycling Ltd v Environment Agency, where the UK court held, on the basis of Tombesi, that scrap metal that was to be reused without being subject to a recovery process was not a waste. The so-called ‘Tombesi-bypass presented problems, however, since a number of the specified recovery processes could also be normal industrial processes using ordinary raw materials that would not be classified as wastes (e.g. coal (fuel) combusted in a power station to generate electricity would not be classified as a recovery process). In ARCO Chemie Netherland Ltd vMinister von Volkshuivesting, the Advocate Generals opinion in Tombesi was not followed. It was considered that a substance consigned to a recovery operation listed in Annex IIB of the WFD was not necessarily to be considered as a waste, and it was first considered necessary to establish whether the material in question constituted waste (i.e. whether or not it had been discarded). The approach taken in ARCO and subsequent cases was different to that of the previous cases, and the need to establish a holders intention or requirement to discard a material became the determining factor when identifying whether a mate rial or substance was waste. The underlying concept of the ECJs approach to the definition of waste was stated in ARCO as follows: â€Å"Whether [a material or substance] is waste must be determined in the light of all the circumstances, by comparison with the definition set out in article 1(a) of the Directive, that is to say the discarding of the substance in question or the intention or requirement to discard it, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not undermined.† Essentially, the definition of waste therefore turned on the term ‘discard. In his judgment in OSS, Carnwath LJ defined ‘discard, as he had done previously in Mayer Parry Recycling Ltd v Environment Agency, as follows: â€Å"The term ‘discard is used in a broad sense equivalent to ‘get rid of; but it is coloured by the examples of waste given in Annex I and the waste catalogue, which indicate that it is concerned generally with materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements †¦Ã¢â‚¬  He noted, however, that it was clear that this was â€Å"only part of the story†, and referred to a number of cases subsequent to ARCO where the ECJ had attempted to provide objective criteria that could be used as evidence that a holder of a substance or material intended to discard that material and, therefore, the material should be considered as waste. Some of these criteria were summarised by Lord Reed in the conclusion to his judgment in Scottish Power Generation Ltd v Scottish Environmental Protection Agency: â€Å"[F]or example, whether the material is produced intentionally; whether further processing is required before the material can be used; and whether the material is certain to be used[;]†¦whether the material is commonly regarded as waste; and whether, if it is used as fuel, its use as fuel is a common method of recovering waste. Since the status of a material has to be assessed on the basis of a comprehensive assessment of the circumstances of the particular case, it follows that none of the factors mentioned is conclusive in itself. The fact†¦that a material is produced intentionally, requires no further processing before it can be used, and is certain to be used, cannot be taken in isolation as determinative of its status.† He went on to consider the criteria that could be used to assess when a substance ceased to be waste: â€Å"The danger which is typical of waste is a danger of harm to human health or the environment caused by the manner of its disposal. The [WFD] seeks to address that danger by making waste subject to supervision designed to ensure that it is recovered or disposed of in a manner which is controlled so as to protect human health and the environment. Once a material has been classified as waste, it therefore remains subject to that supervision at least until that objective has been achieved. It is only then that the material may cease to be waste†¦When it is claimed that what was waste has ceased to be waste†¦it is accordingly necessary to assess whether that claim is well founded. That assessment requires consideration not only of whether the material in question can and will be used without further processing in the same way as a non-waste material, but also of whether the material can be used under the same conditions of environmental protection as the non-waste material with which it is otherwise comparable, without any greater danger of harm to human health or the environment. Other factors†¦may also be relevant in considering whether waste has been subjected to a recovery operation or merely to pre-treatment†¦Ã¢â‚¬  The general approach taken by the ECJ to the definition of waste, that is that any material or substance may be waste where it has been or is required or intended to be discarded, is therefore considered to be consistent throughout the case law reviewed. However, as demonstrated in the remainder of this paper, the insistence of the ECJ that whether or not a material is waste, or ceases to be waste, must be determined on the basis of whether or not its holder intended or was required to discard it, even where this has no practical relevance, results in varying approaches being taken by Member States and national authorities to the definition of waste. In 2007, the Commission of the European Communities published a document intended to be used by Member States in interpreting the judgments from the ECJ. In Annex 1 to the document, a number of examples of wastes and non-wastes are given; however, the examples are introduced as follows: â€Å"†¦There are many other examples that could have been used, and even the examples here may vary across the EU in some circumstances, notably if there is no certainty of use for a given by-product, or on the contrary, if use is certain for a material in a region or Member State, where this is not the case across the whole EU.† Clearly, the position of the Commission in considering that a material might be waste in one Member State but not in another would appear to be wholly inconsistent with the aims of the WFD, and therefore inconsistent with the approach taken by the ECJ to the definition of waste. The seventh recital of the WDF is particularly noted in this regard: â€Å"Moreover, discrepancies between Member States legislation with regard to waste disposal and recovery may affect the quality of the environment and the smooth operation of the internal market†¦Ã¢â‚¬  While the ECJ may be consistent in its approach, the Commission of the European Communities does not appear to be adopting an approach consistent with the aims of the WFD. Varying approaches to the definition of waste can also be seen to be taken by the Member States. In the case law this is apparent in relation to Member States failure to fully implement aspects of the WFD, and in submissions made by Member States on these and other European and national cases. In relation to Member States implementation of the WFD, the following examples highlight well the varying approaches adopted. Germany historically excluded certain categories of recyclable waste from the scope of its domestic waste legislation, while the United Kingdom excluded agricultural waste from its definition of waste. Similarly, and more recently, Italy was found to have failed to fulfill its obligations under the WFD by excluding from its national legislation materials such as excavated earth and rock, food scraps and leftovers, and substances intended for recovery. Italian legislation historically also excluded substances or objects that were considered to be capable of economic reuse. It distinguished between ‘waste and ‘residues, and provided for simplified procedures for the collection, transport, treatment and reuse of residues. Moreover, certain materials with specific commodity characteristics were excluded from the relevant legislation altogether. In Tombesi, ARCO, Castle Cement, Palin Granit Oy, Mayer Parry, Saetti, and Thames Water v Bromley Magistrates Courtsubmissions to the Court were made by various Member States governments. Their submissions highlight the differing approaches adopted by the Member States, and as an example, a brief discussion of the submissions made in Tombesi is provided. The Danish government considered that the concept of waste included all residual products, defining residual products as those that are not the primary goal sought by the production process, do not have a constant economic value, and their use depends on the markets available for them. The French government agreed that waste included residues, and considered that waste continued to be waste until it was recovered. The Italian government argued that the definition of waste in the WFD placed too much importance on the subjective element of the intentions of the waste holder, and that it was legitimate to employ the possibility of use a s a basic criterion and exclude from the notion of wastes substances that have recognized properties and are normally traded on markets. The Netherlands and UK governments took an intermediate view, with the Netherlands highlighting that secondary raw materials would not be waste, while the UK government argued that something was a waste when it left the normal commercial cycle or chain of utility and was consigned to a recovery operation. The Member States approach to the definition of waste clearly varies significantly. As a final example of the approach taken to the definition of waste, it is useful to return to the OSS case and contrast this with other similar cases that have been concerned with a material derived from waste that was subsequently used as fuel. Such cases include ARCO, Castle Cement v Environment Agency, Scottish Power Generation Ltd v Scottish Environmental Protection Agency, Saetti v Frediani,and Lcopower BV v Secretary of State. On the facts of each case, materials in the first three cases were considered likely to be wastes despite the ‘recovery processes that the materials had been subjected to, while the materials in the remaining two were not considered to be wastes. The OSS case followed the general approach taken in ARCO, where it was statedthat â€Å"[t]he operations to which a substance is subsequently submitted are not of crucial importance to its classification as waste†. However, in Castle Cement, which concerned a material recovered from waste solvents and liquids derived from waste sources by Solvent Resource Management, the fact that the material was burned as fuel was an important consideration in determining that the material remained waste. This was in spite of the fact that it had been produced to a specification specifically for use as fuel. This can be contrasted against Saetti, where petroleum coke, which was produced to a specification although was considered to be waste by its producer, was held not to be waste. In Scottish Power, the waste-derived fuel was again made to a specification; however, here it was considered that since the material could not be used as fuel in the same conditions of environmental protection as the raw material it was replacing, it must be considered waste. In relation to the materials characteristics, however, in Castle Cement, Stanley Burnton J considered that: â€Å"Whether material is ‘waste cannot depend on whether any particular holder of it stores and uses it in an environmentally and otherwise safe manner. Its categorisation should depend on its qualities, not on the qualities of its storage or use.† This view can itself be contrasted with the ECJs approach to the definition of waste, which depends not on the quality of the material but on the intention or requirement of the holder to discard that material. In conclusion, while it appears from the case law that the ECJ has, on balance, taken a consistent approach to the definition of waste, its insistence on relying on the holders intention or requirement to discard the material has resulted in Member States and national authorities (including the national Courts) taking, unsurprisingly, an inconsistent approach to the definition of waste. The self-proclaimed ‘clarification document published by the Commission of the European Communities collates and prioritises the judgments from the ECJ, but it is questionable whether the approach taken is consistent with the overall aim of the WFD. Stanley Burnton J confessed to finding parts of the ECJs judgments ‘Delphic and, while apparently consistent throughout the relevant cases, I would tend to agree. The third recital of the WFD states the following: â€Å"Common terminology and a definition of waste are needed in order to improve the efficiency of waste management in the Community.† Perhaps it should read â€Å"†¦and a workable, comprehendible definition of waste†¦Ã¢â‚¬ ? References ARCO Chemie Netherland Ltd vMinister von Volkshuivesting and EOPN [2003] Env LR 40 (Case C-418/97) 15 June 2000 Bell, S. and McGillivray, D., Environmental Law (Oxford: OUP, Sixth Edition, 2006 Castle Cement v Environment Agency [2001] EWHC Admin 224 Commission Decision 2000/532 of 3 May 2000 ( [2000] O.J. L226/3 ) replacing Decision 94/3 ( [1994] O.J. L5/15 ) establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442 ( [1975] O.J. L194/39 ) on waste and Council Decision 94/904 ( [1994] O.J. L356/14 ) establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689 ( [1991] O.J. L377/20 ) on hazardous waste, as amended by Council Decision 2001/573 ( [2001] O.J. L203/18 ) of 23 July 232001 amending Decision 2000/532 as regards the list of wastes Commission of the European Communities v Italy (Cases C-194/05, C-195/05, and C-263/05) 18 December 2007 reported in EU Focus 2008, 225, 15-17 Commission of the European Communities v United Kingdom [2004] All ER (D) 279 (Case C-62/03) 16 December 2004 Commission of the European Communities, 2007. Communication from the Commission to the Council and the European Parliament on the Interpretative Communication on waste and by-products. Brussels, 21 February 2007, COM(2007) 59 final Commission of the Eurpoean Communities v Germany [1996] 1 CMLR 383 (Case C-422/92) 10 May 1995 Council Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste Criminal Proceedings against Niselli (Case C-457/02) Criminal Proceedings against E. Zanetti and Others [1990] I ECR 1509 (Case C-359/88) 28 March 1990 Euro Tombesi and Others [1997] 3 CMLR 673 (Joined Cases C-304/94, C-330/94, C-342/94, C-224/95) 25 June 1997 Icopower BV v Secretary of State (Unreported May 14, 2003) cited in OSS Group Ltd v Environment Agency [2008] Env LR 8 Inter-Environnement Wallonie v Regione Wallonne [1998] All ER 155 (Case C-129/96) 18 December 1997 Mayer Parry Recycling Ltd v Environment Agency [1999] 1 CMLR 963 OSS Group Ltd v Environment Agency [2007] Env LR 19 OSS Group Ltd v Environment Agency [2008] Env LR 8 Palin Granit Oy v Lounais-Suomen Ymparistokeskus [2003] All ER (EC) 366 (Case C-9/00) 18 April 2002 Saetti v Frediani [2004] Env LR 37 (Case C-235/02) 15 January 2004 Scottish Power Generation Ltd v Scottish Environment Protection Agency (No.1) [2005] SLT 98 OH Thames Water Utilities v Bromely Magistrates Court [2008] Env LR 3 (Case C-252/05) 10 May 2007

Company Law Essay

It has been a long established principle of Company Law that the corporate personality is a separate legal entity distinct from its members. (Salomon v Salomon & Co. (1897) However, there are circumstances in which the courts might find it appropriate to dispense with this principle and ignore the principle of separate corporate personality by ‘lifting the corporate veil’ so to speak. Yet, the courts have not been as prepared to pierce the veil of the corporation as they have been to protect it. Salomon v Salomon & Co. gave birth to the separate legal personality of the corporation. In this case, Mr. Salomon, who was conducting business as a leather merchant formed a company which he called Salomon & Co. Ltd in 1892. His shares were distributed among his wife and children, each of whom held one share each, for Mr. Salomon. This was necessary at the time because the law requires that the company consist of at least seven shareholders. It is also important to note that Mr. Salomon was the managing director of the company. (1897) Salomon & Co. Ltd. purchased the leather business which Mr. Salomon estimated to be worth 39,000 pounds. Mr. Salomon based this valuation on his view that the business was bound to be a success rather than the actual value at the time of purchase. The funds were paid as follows: 1) 10,000 pounds worth of debenture stocks leaving a charge over all of the assets of the company and 2) 20,000 pounds in 1 pound shares and 9,000 pounds in cash. At this juncture, Mr. Salomon paid off all of the creditors of the business. As a result, Mr. Salomon held 20,001 shares in Salomon & Co. Ltd. and his wife and kids held the remaining 6 shares. Also, as a result of the debenture, Mr. Salomon was a secured creditor of the company. (Salomon & Salomon Co. Ltd. 1897) The leather business floundered and within a year Mr. Salomon ended up selling all of his debentures so as to salvage the business. This did not work out the way Mr. Salomon planned and the company was unable to pay its debts and consequently went into insolvent liquidation. The company’s liquidator alleged that Salomon & Co. Ltd. was nothing but a sham serving as an agent for Mr. Salomon. Therefore Mr. Salomon should be held personally liable for the company’s debts. The Court of Appeal agreed with this finding and held that a company’s shareholders were required to be a bona fide organization with the intention of going into business rather than just for the purpose of meeting the statutory provisions for the number of shareholders. (Salomon & Salomon Co. Ltd. 1897) The House of Lords reversed the decision of the Court of Appeal holding as follows:- 1) It was not relevant for the purposes of determining the genuineness of a company’s formation that some shareholders were holding shares for the purpose of forming the company pursuant to relevant statutory provisions. In fact, it was perfectly legal for the procedure for registration to be used by a person for the purpose of conducting a one-man business enterprise. 2) Moreover, a company that was formed pursuant to the regulations provided in the Companies Acts is a separate legal person and was not therefore an agent or trustee for the controller. Therefore the company’s debts were its own and were not the debts of its members. The liability of the members would be limited in proportion to the shares that they each held. (Salomon & Salomon Co.  Ltd. 1897) Salomon v Salomon & Co. Ltd. has stood up well against the test of time. In Macaura v Northern Assurance Co. [1925] AC 619 the House of Lords held that in the same way that the company’s liabilities are the company’s and the shareholders, the assets are also the company’s rather than the shareholders. (Macaura v Northern Assurance Co. [1925]) In Barings Plc (In Liquidation v Coopers & Lybrand (No. 4) [2002] 2 BCLC 364 a parent company suffered a loss as a consequence of the loss incurred by one of its subsidiaries. It was held that the subsidiary was the proper party to commence an action in respect of the loss. This rationale followed the rationale in Salomon v Salomon & Co. Vis-a-vis the loss was that of the subsidiary and was therefore that company’s liability rather than the parent company’s liability. The subsidiary was a separate legal entity from its parent company. (2002 p 364) This ruling was closely followed in both Gile v Rhind [2003] as well as Shaker v Al-Bedrawi {2003]. In Re Southard &Co Ltd Templeton [1979] 3 ALL ER 556 at 565 LJ said that A parent company may spawn a number of subsidiary companies, all controlled directly or indirectly by shareholders of the parent company. If one of the subsidiary companies, to change the metaphor, turns out to be the runt of the litter and declines into insolvency to the dismay of its creditors, the parent company and other subsidiary companies prosper to the joy of the shareholders without any liability for the debts of the insolvent subsidiary. ’(Re Southard &Co Ltd Templeton [1979] 3 ALL ER 556 at 565) Lee v Lee’s Air Farming, a New Zealand case, is another good example of the court’s reluctance to pierce the corporate veil. In this case, in 1954 Lee started a company called Lee’s Air Farming Limited. Lee owned all of the shares of the company and was the company’s Governing Director. In addition, Lee worked for the company as its chief pilot. He died in a plane crash while flying the company plane and his wife tried to claim damages via the company’s insurance scheme under the Workers’ Compensation Act. (Lee v Lee’s Air Farming [1961]) The New Zealand Court of Appeal rejected the widow’s claim that Lee was a worker within the meaning of the Workers’ Compensation Act and the case went to the Privy Council. The Privy Council found that Lee’s Air Farming Limited was an entirely different legal entity from Lee and legal relationships between the two were perfectly permissible. Moreover, the Privy Council found that Lee, as Governing Director could indeed give order to himself in his capacity as chief pilot. Therefore a master/servant relationship did exist between the two and Lee was in that respect a ‘worker’ within the meaning of the Act. Indeed, as seen in the cases discussed above the courts aggressively protect the separate legal identity of the corporate citizen. However, there have been legislative intervention whereby specific situations have been defined where it would be appropriate to pierce the corporate veil. For example Sections 213 and 214 of the Insolvency Acts make it possible for the lifting of the corporate veil in cases of fraud and wrongful dealing. (The Insolvency Act 1986 Sections 213 and 214) Section 213 is often referred to as the ‘fraudulent trading’ provision. (Dignam & Lowry 2006 Ch. ) This section arises if the court is satisfied that company carried on any of its business ventures with the intention of defrauding the company’s creditors or the creditors of anyone else. Section 213 will also arise if the court finds that the company acted for any other fraudulent reason and persons involved in those fraudulent ventures can be found liable for the company’s debts. In order to satisfy the court of the existence of fraud Section 213 requires proof of ‘actual dishonesty, involving, according to current notions of fair trading among commercial men, real moral blame’. The . Section 214 does not impose as onerous a burden or standard as does Section 213. It is not necessary to prove an intention to defraud. Section 214 applies to the period just before a company begins winding up procedures. Section 214 arises when the court is satisfied that the directors either knew or ought to have known that the company was becoming insolvent and continued to trade anyway. The director can be liable for the company’s debts in these instances. (The Insolvency Act 1986 Section 214) Section 227 of the Companies Act 1985 makes further provision for lifting the veil of the corporation. This section arises in instances where it is necessary to require the production of group members or group accounts to verify whether or not a subsidiary’s financial activity is that of the holding company. (Companies Act 1985 Section 227) The judiciary has also demonstrated a will to lift the corporate veil whenever the ends of justice desire it to be done. The circumstances in which the court will ignore the corporate veil are ill-defined and the impression is that these circumstances are developed on a case by case basis. Professor Gower said that ‘challenges to the doctrines of separate legal personality and limited liability at common law tend to raise more fundamental challenges to these doctrines, because they are formulated on the basis of general reasons for not applying them, such as fraud, the company being a â€Å"sham† or â€Å"facade†, that the company is the agent of the shareholder, that the companies are part of a â€Å"single economic unit† or even that the â€Å"interests of justice† require this result. ’ (Davies 2003 p 184) Adams v Cape Industries Plc [1990] Ch 433 is viewed by Gower and Davies as the leading case on the exceptions to the corporate veil. In the case the Court of Appeal said that it is not satisfied that the ‘court is entitled to lift the corporate veil as against a defendant company which is a member of a corporate group’ merely on the grounds that the company was used to shield a member of that group from future liabilities of the company. As a matter of fact, the Court of Appeal maintained that this was a legal right by adding ‘whether or not this is desirable, the right to use a corporate structure in this manner is inherent in our corporate law. ’(Adams v Cape Industries Plc [1990] Ch 433) The courts tend to be rather inconsistent with its position on the grounds upon which it will displace the laws protecting the corporate veil. While Adams v Cape Industries Plc was very strict in its position in favor of safeguarding the corporate veil, the House of Lords was rather liberal in DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852. In the latter case Lord Denning speaking of a parent company and its subsidiary holdings said, ‘these subsidiaries are bound hand and foot to the parent company and must do just what the parent company says’. He went on to say ‘this group is virtually the same as a partnership in which all the three companies are partners. They should not be treated separately so as to be defeated on a technical point’. (DHN Food Distributors Ltd v Tower Hamlets London Borough Council [1976] 1 WLR 852) It wasn’t long before the courts departed from the position taken by Lord Denning. Woolfson v Strathclyde R. C [1978] SLT 159 the House of Lords took issue with Denning’s view on the nature of holding companies and the groups under them. The Lords maintained that the corporate veil would not be displaced unless it was shown that the company was a facade. (Woolfson v Strathclyde R. C [1978] SLT 159) In Trustor AB v Smallbone (No. 2) [2001] 1 WLR 1177 the court was adamant that the corporate veil would only be lifted in three circumstances. They were, 1) if the court was satisfied on the evidence that the company was a mere sham or facade, 2) the company itself was involved in some impropriety or 3) where the interest of justice required it. (Trustor AB v Smallbone (No. ) [2001] 1 WLR 1177) Earlier cases identified appropriate circumstances where the court might find that a company was indeed a facade. In Gilford Motor Company Ltd. v Horne [1933] Ch 985 the court found that the company was a facade. In this case an employee bound by a covenant not to solicit the business of his employers, left his employment and set up a company which he used to breach the covenant. The employee argued that while he was bound by the covenant, the company was not. (Gilford Motor Company Ltd. v Horne [1933] Ch 985) In another case the defendant signed an estate contract with the plaintiff for the sale of realty to him. The defendant changed his mind and formed a company, transferring the realty to the company. He claimed that he was no longer the owner of realty and therefore no bound to the terms of the estate contract. The court found that the company was a mere facade for the defendant and he was ordered to sell the realty as per the estate contract. (Jones v Lipman [1962] 1 WLR 832) The Court of Appeal identified three instances in which it would be appropriate for the corporate veil to be lifted. The court said, ‘save in cases which turn on the wording of particular statutes or contracts, the court is not free to disregard the principle of Salomon v A. Salomon & Co Ltd [1897] AC 22 merely because it considers that justice so requires. Our law, for better or worse, recognises the creation of subsidiary companies, which though in one sense the creatures of their parent companies, will nevertheless under the general law fall to be treated as separate legal entities with all the rights and liabilities which would normally attach to separate legal entities. (Adams v Cape Industries Plc [1990] Ch 433) Adams has effectively narrowed the circumstances in which the courts will intervene and lift the corporate veil. This is unfortunate since changing times together with the complex development of both the corporate structure and company law, the Salomon v Salomon & Co. rule is in reality perhaps out of place today. (Gallagher & Zeigler 1990) Although there have been times when the courts have shifted away from this ruling it remains the poster child for the criteria to be met when determining whether or not to life the veil of the corporation. The prevailing attitude is to safeguard against lifting the corporate veil. Question 2b) The doctrine of majority rule has been a long established principle of Company Law within the English Legal System and makes it difficult for minority shareholders to take legal action in respect of majority shareholder improprieties. That said, Rebecca as a minority shareholder is protected to a limited extent by the provisions of Section 459(1) of the Companies Act 1985. The development of the common law doctrine of majority rule was enunciated in Foss v Harbottle. The rationale behind Foss was that any difficulties within the structure of the company ought to be dealt in the general meetings of the company by ratification by the majority shareholders. The prevailing attitude of the courts was one of nonintervention. It would only step in if it was for the purpose of dissolving the business. The facts of Foss v Harbottle reveal that in 1835 a company, Victoria Park Company purchased land in the Manchester primarily for residential purposes. Thomas Harbottle, a director of Victoria Park Company had purchased the property and resold it to Victoria Park Company who eventually developed the property. Richard Foss and Edward Turton, shareholders of Victoria Park Company brought an action against Thomas Harbottle alleging breach of fiduciary duties in that he sold the property to the company at an inflated price. Turton and Foss also claimed that, acting outside of their powers as directors the directors had burrowed funds in the name of the company. The court held that plaintiffs had no locus standi, and that they were required to have obtained the company’s approval to commence legal action. This approval is properly obtained by virtue of a general meeting. In Foss v Harbottle, Wigram VC explained that ‘the corporation should sue in its own name and in its corporate character, or in the name of someone whom the law has appointed to be its representative. ’ It would therefore only be permissible in exceptional cases of serious abuse that minority shareholders could sue the company as a defendant. This explains the relatively strict approach adopted by the courts in deciding representative forms of actions in the guise of minority shareholder oppression. Jenkins LJ in Edwards v Halliwell explained the justification of the majority rule doctrine in Foss v Harbottle when he said ‘the rule in Foss v Harbottle, as I understand it, comes to no more than this. First, the proper plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the members of the company or association is in favour of what has been done, then cadit quaestio’. This is where Section 459(1) of the Companies Act 1985 is important to Rebecca in respect of what appears to be ‘insider dealing’, mismanagement and perhaps even fraud. Section 459(1) of the Companies Act 1985 provides as follows:- Any member of a company may apply to the Court by petition for an order under this section on the grounds that the affairs of the company are being or have been conducted in a manner which is unfairly prejudicial to some part of the members (including at least himself) or that any actual or proposed act of omission of the company (including an act of omission on its behalf) is or would be so prejudicial. ’ David Partington, notes rather bluntly, that the discretion contained in Section 459 is very broad and perhaps infinite. ‘The breadth of s. 459 means that there must be an infinite range of situations in which it may be employed. Partington goes on to say that the courts have been extremely flexible in their application of the term ‘unfairly prejudicial. ’ The test for ascertaining whether or not conduct is ‘unfairly prejudicial’ is an objective test rather than a subjective one. The defendant’s motives are often times not of paramount importance to the courts. In Re Bovey Hotel Ventures Ltd. it was held that ‘the test †¦. is whether a reasonable bystander observing the consequences of (the defendant’s) conduct would regard it as having unfairly prejudiced the petitioner’s interests. The remedies are no longer limited to ‘winding up’ procedures and this of course explains the wider discretion for commencing an action by minority shareholders. Among the remedies available are, rectification, injunctive or ‘buyout relief. ’ By virtue of ‘buyout’ relief, the court makes an order requiring the company to purchase the shares of the petitioning minority shareholders. This is perhaps the best course for Rebecca to follow. She might not wish to remain a part of a company in which she has all but lost faith in. Re Sam Weller & Sons Ltd. rovides some useful guidance as to the kind of conduct that might amount to ‘unfairly prejudicial’ within the meaning of the 1985 Act as amended. For example, failing to pay a dividend in the absence of a sound commercial explanation for such a failure amounts to ‘unfairly prejudicial’ conduct’. In Sam Weller’s case the dividend had already been covered 14 times with the company declaring it for the past consecutive 37 years. In interlocutory proceedings, Gibson LJ denied the company’s application to strike out the petitioner’s claim noting that the company had a case to answer.

Information Security Risks And Risk Management - 1883 Words

Conceptual frameworks These are used by organisations and charities wishing to exterminate the possible risks by assembly information security risk assessment (information security risk assessment). The ISRA is able to resolve the amount of the potential risk associated with an IT system. An ISRA method identifies an organization s security risks and provides a measured analysed security risk profile of critical assets in order to build plans to treat the risks hand would beneficial in health and social care to insure things are protected. (Syalim et al., 2009). In general, individuals for a long time have been managing risk ever since capable of comprehensible thoughts and these came from ‘investing in the planting of crops for the reward of the harvest; weighing up the risks of attacking large animals against the reward of tasty food; sacrificing to the gods in expectation of reward in the afterlife.’ Individuals took the opportunities out of many risks and risk taking from opportunities comes naturally for those who do. However, making that decision logically, risk management only then can really begin with the coming of probability of certain things. Clinical Assessments A clinical assessment is a filed procedural document containing the explanation of the documents purpose. 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An American in Paris - Free Essay Example

Sample details Pages: 2 Words: 634 Downloads: 2 Date added: 2017/09/22 Category Advertising Essay Type Argumentative essay Level High school Tags: American Life Essay Did you like this example? Vicki Hughes Film-140 Essay #2 At What Price Love? Of all human emotions, love is the most revered, but also the most costly. In real life, love often comes with a â€Å"price tag† attached; impediments which can include guilt and greed. How do we negotiate the perilous pursuit of love? What guidance does Hollywood provide? An â€Å"American in Paris† in spite of being a premier musical of its day, mixed love with the baser element of human endeavor but came out with a 1950’s happy ending. Some critics have said that â€Å"An American in Paris† was produced to showcase George Gershwin’s 1928 symphony of the same name. Others complained the film was a weak shrine to Gene Kelly’s ego. Still others dismissed it as little more than fluff with Director Vincente Minnelli sparing no available film technology for this early 50’s musical using elaborate artistic sets, split screens and process shots. However, while all of these compl aints may have some merit a more compelling theme of this film is the dark side of its principal character. Opportunistic Jerry Mulligan is an American expatriate painter residing in the starving artist’s colony in Paris. â€Å"Discovered† by wealthy heiress Milo Roberts, portrayed by throaty Nina Foch, Jerry, not too reluctantly, allows her to become his â€Å"patron† or as some might say, a â€Å"wannabe sugar-mama†. While Jerry is pretending not to know Milo’s true intentions he discovers and begins to romance the fragile, waif-like Lise Bouvier, Caron’s character. Unbeknownst to Jerry, Lise has already â€Å"promised herself† to one of Jerry’ pals, Henri Baurel portrayed by Georges Guetary. As Jerry’s irrepressible advances begin to succeed, Lise begins her own game of deception. Eventually we learn that Henri and Jerry know each other, but are not aware of their mutual affection for Lise. The happy-go-lucky Ke lly character charmingly pursues Caron with good old fashioned gentlemanly exuberance that would make Andy Hardy proud. At the same time he callously uses Milo to further his career. The temptation of his benefactor wanting to sponsor an exhibit for him is too much. The prospect of fame and riches takes over and after token resistance he gives in and lets her â€Å"pay† for him. Interestingly during the scene where Jerry is on a date with Milo, while all but stalking Lise, Minnelli, still manages to make us like Jerry. Jerry’s insensitivity in most circumstances would be more than frowned upon but we forgive him because Lise is sweet and innocent while Milo is hard, calculating and not the type of girl you bring home to meet mother. Something’s got to give. At this critical juncture we are given seventeen minutes of intense Kelly choreography that if not too helpful to resolving the crisis of the characters, did help the film garner industry’s bigge st prize that year along with five other Oscars. Jerry falls for Lise. Lise falls for Jerry. Lise feels guilty: Jerry does not. Henri finds out. Milo finds out. Good-girl Lise remains loyal to Henri while bad-boy Jerry gives into the dark side (Milo). Eventually, however, Jerry is saved from this sordid but lucrative end by Lise dumping Henri for her true love, Jerry. In Hollywood style they ride off into the sunset together to live happily ever after. At the film’s conclusion, we are allowed to appreciate the extent of Milo’s sadness however on balance she gets what she deserves, or does she? We have more empathy for Henri [1] because while he experienced the same fate in terms of love lost, his fate is noble by giving up Lise for her true love. After all once again, after a sometimes unappealing pursuit, love trumps all in 1950’s Hollywood. [1] Particularly because he was unsuccessfully being groomed to be the next Maurice Chevalier. Don’t waste time! Our writers will create an original "An American in Paris" essay for you Create order