Welcome!

To all those reading this I am David Gibbs; I am a Lecturer in Company and Commercial Law at the University of Hertfordshire.

I created this blog as a general out-let of ideas for my research, as well as keeping those interested up-to-date on my research and general interests.

I completed my PhD thesis at the University of East Anglia in 2014. The thesis was recommended for the award of PhD with no corrections. My external examiner was Prof. Simon Deakin (Cambridge) and internal examiner was Prof. Morten Hviid.
My PhD research centred on directors' duties and company law. The thesis was titled 'Non-Executive Self-Interest: Fiduciary Duties and Corporate Governance'. It was a doctrinal and empirical study on whether self-interest was suitably controlled amongst non-executive directors.

My supervisors were Prof. Mathias Siems, Prof. Duncan Sheehan, Dr. Sara Connolly and Dr. Rob Heywood

All opinions of any existing or future blogpost are my own. They do not necessarily represent the views of any of my associated institutions.
ORCID 0000-0002-6596-8536


Tuesday, 28 December 2010

Decrease in Disqualified Directors

The Times have reported today an increase in reports to the Insolvency Service about directors from 3539 in 2002 to 7030 in 2009. The number of directors disqualified has decreased from 1594 to 1387.

The Insolvency Service budget has fallen as well from £9305 to £4097 per case since 2002. According to The Times the lack of resources means that investigators will only take cases that are considered to be "low hanging fruit" leaving the more serious violations unpunished.

From a breach of duty point of view it may provide further evidence that although the ways in which directors may be subject to liability the likelihood of that ever being a worry for a director is minimal. More practical ways in ensuring directors are not acting in breach of duty or not fulfilling their non-fiduciary duties are needed. Merely making directors more liable will not prevent those with an intent to breach duties regardless of any ethical codes of conduct. Accidental breach their duties will continue to occur for reasoning of generality of the codified statement or misinterpretation of it.

What more practical ways may work is unclear. An early thought may be something similar to compliance programs that you see as a method to prevent breaches of competition law. Further research would be needed for more recommendations however.

Thursday, 23 December 2010

Preliminary thoughts on BIS Companies Act 2006 Review

The Department of Business Innovation and Skill have published a two part review on the impact of the Companies Act 2006 (Vol 1 available here and Vol 2 here).

Here are some of my preliminary thoughts on the sections relatings to my work, namely derivative claims and conflicts of interest.

It is hard to come to terms with the notion that the law relating to conflicts of interest is clearer.

I agree that it is simplified and understandable for directors and may narrow or reduce those people in conflict, but it does not change what constitutes conflicting behaviour which was unclear before 2006. So, if you find yourself in court for conflict of interest the generality of the statutory statement may be of little assistance to a director. A restatement of the law which the Companies Act supposedly does will not rectify to problems relating to conflicts.

Furthermore directors and shareholders can interpret a general statement differently and may overlook a blatant conflict of interest whilst at the same time try and claim a breach of duty for a conflict when it clearly is
not. The biggest issue may be the interpretation of s175(4) that there will not be a conflict where it is not reasonably likely to give rise to a conflict

The part on derivative claims was a bit empty as well as assessing the CA 2006 effectiveness of the claim. It mentions people are aware they can bring a claim for a breach of duty but in reality case law is demonstrating it is all a bit of a false dawn for minority shareholders.

I for one am starting to believe the interim permission (prima facie) stage should be a significantly higher threshold as I don't see it serving as anything more than giving shareholders false hope. I portray the removal of the this stage in my forthcoming papers rather than increasing the level of the threshold but I still believe either way the stage is not serving a positive function.
These are my preliminary assessments and my last actions on my research for the year! Clocking off at 19:39 23rd Dec 2010. A Merry Christmas and a Happy New Year to all those reading this.

Saturday, 11 December 2010

Duty-Duty Conflicts

How important are duty-duty conflicts in a fiduciary relationship between company and director? This is what I am now aiming to find out. With more firms becoming inter-connected it is foreseeable, or even true, that directors are serving on more than one board that possibly may conflict with one another.

Much has been written about duty-interest conflicts but very little by way of duty-duty conflicts, although both topics will form part of my thesis.

After assessing how duty-interest conflicts are regulated, which also appears inconsistent in itself, it is appears that such regulation would not cover substantially duty-duty conflicts for directors.

Dr. Matthew Conaglen has written substantially on the topic however, my work is in reference to the fiduciary relationship between director-company which has fundamental differences from that of other fiduciary relationships.

S.175(7) of the Companies Act 2006 does try to address duty-duty conflicts:

(7) Any reference in this section to a conflict of interest includes a conflict of interest and duty and a conflict of duties

The section clearly treats duty-duty conflicts as something "additional" to duty-interest conflicts rather than its own separate principle.

Notably in the parliamentary debates in the Grand Committee a lot of the discussion focused on directors serving on more than one board when referring to s175, which is clearly a duty-duty conflict, however they were talking about it in reference to s175 and duty-interest conflicts. This perhaps demonstrates the vagueness of the principle or a reluctance to allow it to be its own principle.

Few cases have made reference to the duty-duty conflicts. Most read so far, i.e. the case of Mothew, usually refer to where the fiduciary's two principals are contracting with one another in some way. None seem to make reference to  a case regarding opportunities coming to a director that could be taken by either principal. Directors are restricted by the "double management" rule (meaning they cannot serve on competing boards) but with the interconnected firms growing, e.g. Steve Jobs serving on Apple's board and Disney's board, the duty-duty conflict may become more relative in years to come.


Tuesday, 30 November 2010

Supreme Court and Parent Companies

The Supreme Court is soon to hear a case on what constitutes a parent company under the Companies Act 1985 s736. The Court of Appeal decision is available here.

I thought it would be interesting to digress from other tasks for the day, due to adverse weather conditions in the UK affecting everyone's schedule, to look at what actually constitutes a subsidiary under the 2006 Act rather than the 1985 Act which the case is considering.

The facts of the Supreme Court case 'Farstad Supply A/S v Enviroco' (hereinafter Enviroco) are as follows:

A parent company pledged its controlling shares in one of its subsidiaries to a bank as security and the issue is whether it remains a subsidiary of that parent company.

On July 7th, the Appellant (E) was instructed to clean some tanks of an oil rig supply vessel owned by the Respondent (F), but chartered by Asco UK Ltd (C) under a charterparty. Included in the charterparty was an indemnity by F in favour of C and its affiliates, which included subsidiaries. E claimed that both it and C were subsidiaries of the parent company (P), who had given its shares in E to the bank as security and the bank's nominee became the holder of the shares but P retained the voting power. F claimed as a result, P ceased to be a member of E and could not obtain a benefit of the indemnity clause.

During cleaning, a fire killed one of E's employees and caused considerable damage. E, in the Supreme Court, launched proceedings for a declaration to the effect that at all material times it was an affiliate of C and entitled to an indeminty in the Charterparty.

The Deputy Judge decided under the 1985 Act that the person giving the security would be the registered holder of the shares otherwise that would lead to an easy evasion of s736. However, the Court of Appeal allowed the appeal and applied the Statutory definition of "subsidiary". They highlighted that merely providing security would not in itself, make you a member of the company within the meaning of s736. Membership was a status derived from the entry of the shareholder's name in the register of members.

Arguably the Deputy Judge also failed to consider the duty on a shareholder to make decisions in good faith (Allen v Gold Reefs [1900] 1 Ch 656 pp 671-2).

Importantly the Judge noted that the wording of the 1985 Act may lead to results that produce uncommercial result but they were not in a position to re-word the Statute.

The CA 2006 s1159 now defines the meaning of a "subsidiary" as:

(1) A company is a “subsidiary” of another company, its “holding company”, if that other company–
(a) holds a majority of the voting rights in it, or
(b) is a member of it and has the right to appoint or remove a majority of its board of directors, or
(c) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it,
or if it is a subsidiary of a company that is itself a subsidiary of that other company.
(2) A company is a “wholly-owned subsidiary” of another company if it has no members except that other and that other's wholly-owned subsidiaries or persons acting on behalf of that other or its wholly-owned subsidiaries.

My initial thoughts on the wording of the legislation, in relation to the facts of the case, would be that the outcome would highly depend on the content of the security arrangements between the parent company and the bank.

What the new section seems to infer is that what is important in determing whether the company is a subsidiary of the parent company is control. It would seem from the COA that the important factor is the wording of the Statute. The 2006 Act seems to have made improvements on the wording of the legislation itself in determining what is a subsidiary of a parent company and not based on whose name is on the register of members or the rights they may hold within the company.

I will await the verdict of the Supreme Court before making any more contributions to this discussion.

Thursday, 11 November 2010

Leeds Conference on directors' duties and shareholder litigation

I recently attended a conference on Directors' duties and shareholder litigation in wake of the financial crisis at Leeds University.

Discussion focused mainly on s172 and the new statutory derivative claim, but there was also interesting insight from Andrew Campbell on psychological aspects affecting decision making, or John Armour's presentation regarding regulatory competition in Delaware.

The panel discussion was recorded and is available to download here. I managed to get a couple of questions in and you can hear them about a third to half the way in to the recording.

The papers are also available to download from the following links.

Mr Robert Hollington QC - The Winding up of Hedge Funds on Treasure Islands
Professor John Armour - Is Delaware Loosing its Cases?
Andrew Campbell - Why Good Leaders Make Bad Decisions (abstract only) - book available for purchase here.
Professor Janet Dine - Post-Concession Models in Potential European Company Law
Mr Louis Doyle - The Susceptibility to Meaningful Attack of Breaches of Directors' Duties under English Law
Dr Michael Galanis - The Dynamics of Corporate Bargaining and the Law vs Contract Debate: Chocolate, Cars and Other Systemic Issues
Professor Andrew Keay - The Duty to Promote the Interests of the Company: Fit for Purpose?
Professor Roman Tomasic - Shareholder Activism and Legislation Against UK Banks: The Limits of Company Law Remedies

I have also recently joined the LexisNexis Bloggers Network and will hopefully expand my readership

Conflicts research presented at UEA research seminar series

Yesterday evening in between talking to potential students at the Postgraduate open day at UEA I presented my work on conflicts of interest, which I have blogged about previously. The slides from the presentation are available here.
Duncan Sheehan and David Mead provided me with some interesting insight that I will investigate further.

Duncan pointed out understanding the difference between a conflict of interest and a conflict of duties and what the effect and differences of the two where for a director's liability. He mentioned conflicts of duties had rarely been looked, although there is some work out there by Matthew Conaglen.

David also highlighted the actual wording of s175 Duty to avoid a conflict of interest:

(1) A director of a company must avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company.
(2) This applies in particular to the exploitation of any property, information or opportunity (and it is immaterial whether the company could take advantage of the property, information or opportunity).

The exact wording "must" under a literal interpretation could restrict a director from ever serving on more than one board in the same sector/industry. This wording however, may tie in to the understanding of the difference that Duncan raised between conflicts of interest or duties.

Watch this space for further updates on this matter in the coming weeks.

I am now currently preparing for my next presentation to the law in society group in Derby next week as well as preparing for the undergraduate seminars on Directors' Duties.

Tuesday, 9 November 2010

Understanding Conflicts of Interests

OK! So I am about to re-write my chapter on a director's duty of loyalty and his duty to avoid a conflict.

The main point of the work is to get across how we understand the duty of loyalty in a fiduciary relationship between director and shareholder. A lot of work seems to focus either on fiduciary duties generally or attempts to categorise them.

This chapter will look specifically at the director's duty. The main focus is pointing out the law relating to a director's fiduciary duties developed not out of company law but out of notably trusts and partnership law. Where both fiduciaries in those relationships are distinct from that of shareholder/director. It may be seen as a little naive by some judges and academics to just assume the duty applies the same to this fiduciary relationship as it does to the others.

Developing the law based on principles from other doctrines such as trusts leads to unnecessary and restrictive rules on the director who is fundamentally a different character from a trustee.

Trusts law relating to the relationships of the parties developed not on principles of economics but more on those of religion, morality and social.

The confusion of the exact nature of a fiduciary's duty of loyalty has lead people to believe there are two distinct rules inherent in this duty. That of no-conflict and no-profit. This chapter aims to show that two distinct rules in a director/shareholder relationship are restrictive and unnecessary let alone doctrinally flawed.

Many reasons for this approach have been unearthed including those of shareholder protection, disclosure, requirements, multiple directorships and so on.

I also plan to do some empirical work in relation to this chapter to gather evidence of directors (exec and non-exec) serving on more than one board, either concurrently or consecutively and look for correlations in market value of those firms.

I am presenting this work internally at UEA tomorrow in our research seminar group.

Friday, 22 October 2010

New LL.B Microsite

UEA has just published its new LL.B microsite for those considering studying law.

The website is very informative and beneficial to anyone considering studying law at UEA. It contains a degree planner, details about what life is like as a law student as well as first hand accounts from past and presents students and staff about the different law courses provided by UEA.

Research to be presented to Law in Society Research Group

On the 18th November I will be presenting my research to a Law in Society Research Group in Derby at the University of Derby.

The talk will be on my papers that are being published in the Company Lawyer next year.

Monday, 11 October 2010

Revitalised UEA Law Research Site

UEA has recently updated its research site allowing for easier access to research conducted at the UEA Law School. It is now easy to navigate with links to other areas of the UEA site.

Sections on the site include details of publications of UEA researchers; information about activities of research students such as myself; details on academic visitors; as well as external activities of our researchers. There are even details of other blogs created by the researchers at UEA.

So, why not take a look to find out what academics at UEA are researching.

Friday, 8 October 2010

Aberdeen Rail Co v Blaikie [1843-1860] All ER Rep 249: Lord Upjohn, was it really "so well settled"?

For those not in the know, Aberdeen Rail is seen by most as accepting that the director's duty of loyalty is made up of one rule, the no-conflict rule, and the no-profit rule is merely ancillary to it. Other academics argue that the two rules are separate.

I must agree that the former stance is the truth - not merely because this case and the case of Boardman v Phipps in the House of Lords confirmed it. As stated in the title, Lord Upjohn stated that the principle laid down in Aberdeen Rail by Lord Cranworth was "so well settled" - as it is theoretically likely that two rules would be detrimental to the economy but also increase shareholder litigation.

If directors believe they cannot make any profit out of information that comes there way by virtue of their position, they would become reluctant to serve on any other board in the same industry and with more industries becoming intertwined may be even reluctant to serve on more than one board in general. As to opening up the doors to shareholder litigation, if a shareholder can sue for profits made out of any information received by virtue of their capacity as a director is would be difficult to say when and when not he is acting as a director.

With that said, on recent historical reading regarding the development of a fiduciaries' (a basic definition being someone in a position of trust charged with handling another's property e.g. a director/solicitor/trustee) duty of loyalty, it is hard to believe that Lord Cranworth would reject a separate no-profit rule, and a recent Court of Appeal case of Re Allied Business has also confirmed the existence of a separate rule.

Lord Cranworth stated that 'And it is a rule of universal application, that no one, having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect.’

From this it has been implied that the case rejects a no-profit rule as separate from the no-conflict rule.

Lord Cranworth however, was a strong supporter of the utmost strict nature of the duty of loyalty. If he were to be asked at the time on his view one may assume - as easily as other have done that his judgment confirms one rule - that he would approve two rules.

This could cast a shadow of the legitimacy of a lot of supporters of the single rule, but it is still supported that the correct approach is a single rule as outlined above. Cases that a 2005 article written by David Kershaw (In Legal Studies 'Does it matter how the law thinks about corporate opportunities) cites as confirming one rule would then all lack the necessary emphasis to support one rule. Since Boardman hangs off the Aberdeen Rail judgment both cases would be thrown in to questionable legitimacy as to their support. The other case of Item Software v Fassihi is by Kershaw's own omission doubtful as to whether it actually supports one rule. 

Further historical reading needs to be done to verify Lord Cranworth's approach, but with the recent decision of Re Allied Business it is likely that is story is far from over. 

I am presenting research on this topic at the UEA research seminar series in November 'The Never Ending Story: A Fiduciaries No-Profit Analysis' and am also working on a publication based on this research.

Thursday, 30 September 2010

Company Law Publications

I recently completed two papers on the new statutory derivative claim. I am pleased to announce that both are going to be published in a leading company law journal known as the Company Lawyer in Feburary and March 2011.

The first paper is titled The Statutory Derivative Claim: A Prima Facie Case and the Mandatory Bar, which will be published in Feburary. In March the paper 'The Statutory Derivative Claim: The Second Stage and CSR' will be published.

The papers are a case based analysis from the first six English derivative claims brought before the courts.

Interesting discoveries have been made including the courts approach to Corporate Social Responsibility in a derivative claims context, elements relating to the need to establish a prima facie case, what exactly is a hypothetical director, and the standard of proof required for a claim to be allowed.

Wednesday, 1 September 2010

Case Study

The University of Derby contacted me the other day asking to do a case study on my time at University and what I am doing now.

It has just been published on their website.

Having this sort of advertisement or publicity for the University appears to me very beneficial, especially other case studies that have been done in video format. It caters to the needs of all potential students when they are assessing which University to attend and which course to undertake. Having a clear message from previous students about what life is like on the course given to them in a variety of manners can only have a positive effect on recruitment.

I am in the process of writing a slightly lengthier blog on my work regarding my research on a fiduciary's duty of loyalty and the debate surrounding the no-profit and no-conflict rules. WATCH THIS SPACE.

Wednesday, 25 August 2010

Research Presented at Norwich Symposium

Over the summer I have presented my research at a symposium in Norwich.

The event was aimed at demonstrating what research was going on at the University to members of the public and employers.

The day was a great success although having to stand up and talk for 10 hours was physically demanding. Members of the public had some very interesting views and it was very beneficial to hear some peoples' subjective views on matters regarding my research.

The event was covered by the EDP.