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


Thursday, 31 May 2012

Effective e-learning reflection

I have recently been on a Teaching Skills course and had to write a reflective 1000 word piece about my teaching experiences. I chose to focus on my use of e-learning tools. Here is what I wrote.

Introduction
‘Essentially, flexible learning has two features: It provides students with the opportunity to take greater responsibility for their own learning; it enables students to be engaged in learning activities and opportunities that meet their own needs’[1]
Student learning does not have to start and finish in the classroom. Developing effective e-learning tools for students over the past year has allowed for discovery as to what works well and what does not. After implementing some of these tools in practice and reading around the subject it is possible to reflect on how these tools can be successfully adapted in to student learning.

Literature on e-learning often comes across with two fundamental points that it should not merely mimic that which was taught in the classroom where it is combined with face-to-face learning; and where it is pure e-learning that a sense of community is created. Lecturers see a problem with mimicking the face-to-face sessions, as highlighted in a qualitative study, that ‘the students think they don’t have to attend so much that they will pick up the slides and by some sort of osmosis they’ll learn everything that’s on it’.[2] Online learning that merely repeats the face-to-face contact also has its problems from a student perspective as without human contact and social interaction it means students are unable to ‘construct their own knowledge and take responsibility for their learning’.[3]

As such it is important that e-learning facilitates the face-to-face contact time through what is referred to colloquially as “blended learning”[4] as well as creating a sense of community to allow for creative thinking. A final benefit to consider of e-learning is widening participation. Effective e-learning can help meet the goal of widening participation by making learning flexible to meet the needs of different students. With these benefits in mind the reflection below shall focus on how the use of e-learning tools for a third and second year undergraduate course in Company Law and Contract Law respectively, succeeded in meeting these benefits.

Methods Deployed
Online pre-recorded videos
The online pre-recorded videos that were provided discussed and provided a model answer for problem questions which were well received by students. The usage by students on the Company Law course was 100%.

These videos had many added benefits than simply going over the question in class. For one it gave a sense of community and virtual presence with students. From a teaching perspective it also made it easier to clarify difficult points of law through re-recording, which you do not have the opportunity to do in the classroom. Whilst this may have been more time consuming it narrowed the room for confusion on topics. Students also cited the videos as very beneficial to their learning. They were able to watch the videos on a number of occasions at their own leisure. It also helped them interact with the online learning environment and take responsibility for their own learning, rather than what one commentator referred to as a “snatch and grab” or surface approach to downloading slides.[5]

Moving forward, to improve on this tool it would be an added benefit to release the videos before the seminar rather than after. This may facilitate greater discussion and independent learning in the classroom as well as helping with their preparation. This would certainly help in facilitating the face-to-face learning rather than repeating it. It would also further their ability to take responsibility for their own learning. If such an approach is taken, the way in which the face-to-face learning is conducted will also need to be reflected upon to ensure the answer to the problem question is not merely repeated.   

PowerPoint Slides
Providing slides can have numerous problems. To name a few there is the surface approach, the problem of non-attendance and the issue regarding lack of concentration if the slides are too detailed.

In Law, sometimes the class required the use of detailed slides to convey information, but not all was necessary for the class discussion. For example, in discussing directors’ remuneration, facts and figures were used to show practical examples. To overcome the problem of having to use detailed slides two approaches were used. One is discussed under the next heading of online tasks, and the other was one of simple disclosure. By drawing students’ attention to the fact the slides were for their use after the class it often focused their attention to discussions and questions rather than trying to read off the slides.    

Online tasks
The use of online tasks before the seminar also helped develop the face-to-face sessions and allowed students to take responsibility for their own learning. Since the class was based around directors’ remuneration students were asked to find and disseminate information from a directors’ remuneration report. This facilitated the discussions in class as students were forthcoming with opinions as they were aware of how it operates in practice.

Quick Reader (QR) Codes
The use of QR codes is something of a more recent phenomenon. With the increased availability of information on the go it is important that teaching stays abreast of these developments so students are able to disseminate information wherever they go rather than having to sit in front of a desktop or attend classes.

QR codes allow quick access to information on smart phones and tablets by scanning the codes, which brings up the relevant information. For Law this has been put to use in accessing certain websites as well as lists of information such as case lists. The use of these codes can be beneficial for meeting the goal of widening access. Allowing for easier access to information on the go can save valuable time and frees up the time as to when students are able to interact with the materials.

However, upon reflection their use has been limited. Finding innovative ways to use them more effectively in higher education to supplement face-to-face learning and help develop an online community for a richer experience may take more time.

Social Networks
Operating a blog and Twitter has been able to serve as a useful resource for students in providing up-to-date information on recent developments. Using social networks can assist in the development of an online-community with both student-student and tutor-student engagement. Similar to the online tasks it has also helped students in preparing for classes. By providing labels to blog posts relating to the different classes on the modules, students can quickly search for posts about that topic. Blogs can also support hyperlinks to other recent developments on topics that can help develop students’ commercial awareness. This can be a valuable benefit over the use of textbooks and will increasingly supplement the face-to-face learning. Anecdotal evidence from assessments this year has suggested students have benefited from using the e-learning tools this way.

Conclusion
Use of e-learning tools needs to be effective to help students develop. One of the main benefits found whilst using them is that they help students take responsibility for their own learning. They can be used to help students prepare for a class, which can make them more engaged in discussions to reflect on different concepts. Whilst not all students engaged with the online tasks this year, to increase participation it may be beneficial to include a discussion board, or other collective engagement mechanisms, with the task to develop peer assisted learning to enhance the online community. This may help prevent students continually taking a surface approach to e-learning tools.


[1] K Pond, R Ul-Hag and W Hade, ‘Peer Review: A pre-cursor to assessment’ (1995) 32(4) Innovations in Education and Teaching International 314
[2] N Fry and N Love, ‘Business lecturers’ perceptions and interactions with the virtual learning environment’ (2001) 9(4) The International Journal of Management Education 51, 54
[3] N Fry and N Love, ‘Business lecturers’ perceptions and interactions with the virtual learning environment’ (2001) 9(4) The International Journal of Management Education 51, 53
[4] See N Jones and A Man Sze Lou, ‘Blended Learning: Widening participation in higher education’ (2010) 47(4) Innovations in Education and Teaching International 405
[5] N Fry and N Love, ‘Business lecturers’ perceptions and interactions with the virtual learning environment’ (2001) 9(4) The International Journal of Management Education 51, 53


Tuesday, 29 May 2012

Corporate Law History: Where do we come from? Why are we here?

Ok I am not Prof. Cox but is it worth understanding the past of corporate law anymore? How much value does it add to current debates in this field such as corporate social responsibility, financial regulation, European company regulation and probably a few others.

This blog post is the first of a brief overview of some of the key events in the corporate law timeline.

Year 1720 - This was the year of the introduction of the "Bubble Act". The Act received Royal Assent on the 11th June 1720.

Scholars have debated its purpose. Two primary theses are: 1) was to enhance the importance of charters and to enhance Parliament's ability to raise revenue through the issue of charters. It was argued by one scholar, Henry Butler, that "the Bubble Act was a government created entry barrier designed to put out of business all business associations which were competing with Parliament's charter business"; 2) A now more established thesis is that it was the South Sea Company who initiated the Act to protect its own bubble from a wave of small bubbles that competed with the company's conversion scheme. (R Harris, 'The Bubble Act' (1994) 54(3) Journal of Economic History 610) This would, according to Harris, hinder investment opportunities and divert more capital to South Sea shares. By the 24th June share price at South Sea had peaked at £1050 but by the end of the year the bubble had burst and shares had dropped to below £200 at the end of the year. The crash constituted the first international stock market bust. It severely threatened English public finance.

The passage of the Bill demonstrates the problems a severe lack of independence can have when formulating legislation and decision making. Those responsible for debating the Bill in Parliaments were mostly connected to the company either as directors, friends or subscribers to shares. Also at the time of Royal Assent there was significant optimism over the success of the debt conversion scheme that would lower the national debt notably through payments by the company to the Treasury, meaning the Act was probably not a response to any impending crash.

The Act itself prohibited incorporation of new joint stock companies. Incorporation could only be achieved by charters granted by the Crown or private Acts of Parliament. However, as observed by Watson this did not stop the creation of unincorporated forms of business organisations ((2011) Journal of Business Law 597). Harris also notes that acting as a corporate body without incorporation was deemed illegal prior to the Act under common law under an ancient common law writ of scire facias. If anything, the Bubble Act only added new procedure and punishment to what had already been sanctioned.

As such Harris views the Bubble Act as less intrusive on the development of corporate law as others have made out. Harris notes the Act did little to prevent the South Sea bubble crash and it was not designed to regulate the market or practice of investors.

It was not until 1825 though that the Bubble Act was repealed. Despite the crash of the market Harris highlights that the events served to strengthen the market developing an integrated and efficient international financial market. So despite the crash the economy recovered and developed. It appears the South Sea Company was not too big to fail.

Watson argued that the Bubble Act in fact helped develop company law by forcing individuals to find new ways of creating organisations to run a business. However, the Bubble Act, as Harris showed, did nothing more than add additional punishment to something that was already sanctioned under the common law. The effect of the Bubble Act may not be as important though to the next phase of development since either way judges began to recognise and develop a body of law around these new forms of unincorporated business organisations.

In the next piece on corporate law history I plan to look briefly in to the Joint Stock Companies Acts and Limited Liability.

Tuesday, 22 May 2012

FSA's loss, CEO's gain

A quick blog post to note the recent decision by the Upper Tribunal to unanimously clear John Pottage CEO at UBS Wealth Management (UK).

The decision can be found here. A review from Travers Smith LLP can be found here.

Despite the fact the FSA's fine of £100,000 was unanimously over turned the opinion of Travers Smith is that it was very much based on the facts. However, this result may still undermine the FSA's credible deterrence strategy and motivate other members of senior management to challenge decisions of the FSA. Firms may also back their management more often.

Friday, 18 May 2012

Should I blog on specific days?

Developing on from who is viewing my blog, which posts and where from; I thought I'd investigate what day(s) people tend to view my blog.

Data is a bit limited since I can only view specific days over the last month. The data I collected was over the last 28 days 20th April-17th May.

I was interested on the basis that if people view on a specific day I will be able to maximise the amount of people who view my posts.

The results where as follows:
Mondays - 120
Tuesdays - 141
Wednesdays - 99
Thursdays - 128
Fridays - 104
Saturdays - 52
Sundays - 92

From the results it seems I should avoid blogging on a Saturday. The figure is nearing 3x less than that of the highest day of Tuesday.

The days on which I post though may also have some bearing on these numbers. Over the past 28 days I have posted five times.

Once on a Monday, twice on Tuesday, once on Thursday, and once on a Friday. Thus it would seem the days I actually upload a post has an influence on page views I get that days. I have not blogged on either Wednesday Saturday or Sunday and those are the three lowest days, whilst I have blogged twice on a Tuesday in the last 28 days and this was the highest day for readership.

Looking at the specific days I post on as well these days also received the highest readership. Each of the five days I posted received the five highest days out of the 28. However the highest day was a Monday with 54 views. Yet Monday is only third in the readership days ranking.

As such it may be preferable to blog on either Tuesday or Thursday. Let's see how many blog views I get with this post... 

Friday, 11 May 2012

If you haven't got anything nice to say... don't say anything: The Company Remuneration Bill

Ok so the title of this post is a bit of a misnomer. I do have one good thing to say. Good thing to say about what? Well I am referring to the Company Remuneration Bill that received its first reading in the House of Lords today. The triumphant Bill consists all of four sections. This Bill is, however, unlikely to become law, see here, but below I shall highlight some problems that may be informative for any regulation the government does eventually introduce.

So let's deal with each section in turn (excluding section 4 which is merely stating its application):

Section 1(1): Decisions of remuneration committees as to the remuneration of the directors and five highest paid employees, before implementation, must be ratified by an ordinary resolution.

Comment:
I have repeatedly pointed out apathy amongst shareholders. Ok yes there has been a bit of a rebellion as of late. But if we are truly honest most of that hype has come from the media. How long will this "shareholder activism" actually last? Not long.

I have also banged on about better non-executives on remuneration committees yet there is no mention of non-executives anywhere in the Bill. Surely the pay packages that were awarded to the directors at Aviva show a complete disregard for common sense amongst non-executives. If non-executives did their job properly there would have been no need for this tighter regulation.

With that in mind there does need to be some mechanism to prevent excess beyond non-executives. As the crisis highlighted, remuneration continually rose as it was a way of attracting the best talent with no consideration of the actual amount. Thus the formation of an independent regulator whom shareholders could complain to would be more desirable surely than trying to coordinate large groups of shareholders in public companies?

Section 1(2): Such decisions MUST be voted on in a secret ballot by all the company's employees, although this is not legally binding

Comment:
Yes this is a section. You have a remuneration committee, shareholders, and now employees second guessing what you are going to get paid. So much uncertainty and so many voices. Why do the creditors not get a vote if you give one to employees? The non-executives are there to be independent and award remuneration. If they do not do their job correctly they should be fired. The term overkill is certainly coming to mind with executive remuneration.

The wording is very interesting. The words "must" and "all" seem a bit optimistic. Are all the employees really going to vote? Did all public sector workers vote whether to strike?

Section 2(1): Where a ballot is held under section 1(2) this must be reported in the following year's annual report

Comment:
Well this section slightly ignores the wording of the one prior. If the decisions must be voted on by all the company's employees then ipso facto it will need to be published under section 2(1). Surely all that needs to be said under section 2(1) is the results of the ballot must be published if one is always required to be made.

Section 2(2): The remuneration report must prominently feature the remuneration ratio between the highest paid director or employee and average remuneration of the lowest remunerated 10% of employees.

Comment:
So this is something I actually agree on. In fact I do not think it goes far enough. I feel that long term incentive plans should probably have employee remuneration criteria attached to it. As such executive remuneration should not go up when employees are made redundant. At least some publication of the ratio will put things in to perspective for directors by physically having to consider the differences.

In fact this may be great for executives if they decide to fire everyone in the lowest 10% since the ratio will decrease... certainly food for thought as to the wording and ratio to be disclosed...

Section 3: Interpretation

Comment:
OK so I wish to focus on the interpretation of one particular word. That is "remuneration". This section defines remuneration as "all rewards and benefits, including, inparticular, share options, bonuses, beneficial rights and salaries.

Well for anyone who knows even the slightest bit about remuneration this section is as confusing as it can possibly get. In the UK remuneration already has two meanings where there are already discrepancies. So this is in fact a third definition that clearly has no consideration as to the differences between the different types of compensation paid to directors. I have discussed these different definitions and award schemes elsewhere, see here.

The definition says all rewards and benefits. Well surely that includes long term incentive plans? But how do you accurately quantify long term incentive plans? A director is not given the shares in long term incentive plans upon award. He has to satisfy criteria over a three year period. If that criteria is not satisfied then the shares do not vest and the director gets nothing. So do we assess the remuneration for Long Term Plans at all when working out the ratio between highest and lowest paid in accordance with section 2(2)? Do you calculate long term plans on the value at the time of the award by multiplying share price by shares awarded; or simply go on the value of the shares that actually vest?

Long Term Plans are also not the only problem. Are pensions to be included? Pensions again are not monies paid by the company. They are merely a debt on the company's books.

Share options also suffer from the same problem as Long Term Incentive Plans. A director only gets rewarded if he exercises those options. So at what point do you assess their value?

Finally as I mentioned, how does this definition of remuneration interplay with the other two found in the Listing Rules and the 2008 Regulations? Surely three definitions of remuneration is more complicated than one. If the idea was to simplify remuneration, I would not call this a good start. The problem with trying to simplify is that it will probably make it more confusing if you attempt to generalise remuneration. Although the rules may seem complex to an outsider, to someone with knowledge of the area the purposes behind the rigid definitions and different mechanisms become clear and quite simple to understand.

My final thought is this goes to show something so true in company law. If you do not regulate yourselves properly, the government will impose something worse.

Thursday, 10 May 2012

Multiple Directorships across the EU

Below is a table I have constructed regarding multiple directorship or interlock restrictions imposed by corporate governance codes across the European Union.

Some countries may have restrictions imposed by statute which are not included in the summary below.

With non-executive restrictions on multiple directorships/interlocks the general trend appears to be a simple statement of "enough time to fulfil duties". For executive restrictions though they appear to be more stringent with most limiting director external appointments to just one or two.

Some countries appear not to impose any limits such as Sweden and Poland. It is important to remember though that restrictions may be imposed by statute and figures have also shown that in 2001 Sweden had 100% director disclosure of external appointments.


Member State
Exec restrictions
Non-exec restrictions
AUSTRIA
Para 25 - w/o approval from supervisory board no member of management board is permitted to assume a mandate on a supervisory board
Para 26 – shall not hold more than 4 supervisory roles (chairs count double)
Para 56 – No more than 8 mandates (chair counts double)
Para 57 – If serving on a management board of a listed company may not hold more than 4 supervisory roles (chair counts double)
BELGIUM
N/A
Para 4.5 – should not consider taking on more than five directorships
BULGARIA
Para 3.6 - Company by-laws should limit the amount allowed
Para 3.6(one tier)/3.7(two tier) - Company by-laws should limit the amount allowed
CYPRUS
N/A
N/A
CZECH REPUBLIC
Ch VI para 16 – Participation in too many boards can interfere: but no limit
Ch VI para 16 – Participation in too many boards can interfere: but no limit
DENMARK
N/A
Para 5.7 – member of supreme governing body who is also on the executive board should not take on more than a few non-executive positions or one non-exec and one chairmanship
ESTONIA
Para 2.2.2 – No more than 2 other management board positions; shall not be a chair of a supervisory board
Para 3.2.3 – Enough time to perform duties
FINLAND
Rec 9 - Possible to devote a sufficient amount of time to discharge of duties, considering secondary occupations
Rec 9 - Possible to devote a sufficient amount of time to discharge of duties, considering secondary occupations
FRANCE
Part II Para B.5 - Not in favour of cross-directorships unless for strategic alliances
Part II Para D.2 - Recommended limit of five non-exec positions or two exec
Part II Para D.2 – Recommended limit of five non-exec positions or two exec
GERMANY
Para 5.4.5. – Should not accept more than three positions on supervisory boards
German Stock Corporation Act section 100 – Members of the supervisory board should not take on more than 10
Para 5.4.5. – Members must have enough time to fulfil duties
GREECE
Para 4.2 – Board Members should not sit on the board of more than five other listed companies
Para 4.2 – Board Members should not sit on the board of more than five other listed companies
HUNGARY
Para 2.4.2 – When accepting further functions or nominations it is the board members’ duty to ensure they are able to perform their duties in relation to the current board membership
Para 2.4.2 – When accepting further functions or nominations it is the board members’ duty to ensure they are able to perform their duties in relation to the current board membership
IRELAND
(Corporate Governance Code for Credit Institutions and Insurance Undertakings CIIU) – Para 7.7 – No more than five additional appointments of other CIIUs; Para 7.8 – No more than eight additional appointments of non-CIIUs
(Corporate Governance Code for Credit Institutions and Insurance Undertakings) Para 7.7 – No more than five additional appointments of other CIIUs; Para 7.8 – No more than eight additional appointments of non-CIIUs
ITALY
Para 1.C.2-3 – Must devote enough time to fulfil duties. The board shall impose any limits differentiating depending on the type of the role i.e. executive or non-executive
Para 1.C.2-3 – Must devote enough time to fulfil duties. The board shall impose any limits differentiating depending on the type of the role i.e. executive or non-executive
2.P.3 – Devote enough time to ensure their judgement may have a significant impact on the taking of board’s decisions
LATVIA
Para 4.3 – Enough time to fulfil their duties
Para 7.2 – Should have enough time to fulfil duties and act in the interests of the company
LITHUANIA
Para 4.7 – Devote sufficient time to fulfil their duties
Para 4.7 – Devote sufficient time to fulfil their duties
LUXEMBOURG
Rec 2.9 – Should accept no more than one other non-executive appointment and not be a chairman of more than one other listed company
Rec 2.9 – Should devote sufficient time to fulfil duties and only accept a limited amount. Should not be a chairman of more than one listed company
MALTA
Para 1.7.3 – Allocate sufficient time to their duties
Para 3.8 – Allocate sufficient time to their duties and limit the number of directorships held in other companies
NETHERLANDS
Para 2.1.8 – Must not be a member of more than two supervisory boards, nor may they be a chairman of a supervisory board
Para 3.3.4 – Maximum number of appointments limited to five. Chairmanships count double
POLAND
N/A
N/A
PORTUGAL
N/A
N/A
ROMANIA
N/A
N/A
SLOVAKIA
Section V n 5 – Several directorships can disrupt efficiency. The company should assess if these directorships are compatible with efficient performance of the board’s activities
Section V n 5 – Several directorships can disrupt efficiency. The company should assess if these directorships are compatible with efficient performance of the board’s activities
SLOVENIA
14.2 – Should inform the supervisory board immediately of any appointment to a supervisory board
Para 7.1 – sufficient time for the role
Para 8.6 – should make an objective assessment of their ability to perform duties in relation to the scope of existing duties
SPAIN
Para 26 – Devote sufficient time and effort to perform their duties. Companies themselves should lay down any rules or limits on external directorships
Para 26 – Devote sufficient time and effort to perform their duties. Companies themselves should lay down any rules or limits on external directorships
SWEDEN
N/A
N/A
UNITED KINGDOM
Para B.3.3 – No more than 1 additional non-executive appointment on a FTSE 100 board
Para B.3.2 – All directors should allocate enough time to discharge their duties


Tuesday, 8 May 2012

Much ado about nothing? Is Chandler v Cape significant?

A recent Court of Appeal in Chandler v Cape plc [2012] EWCA Civ 525 decision has found that a parent company owed a duty of care to its subsidiary employees.

This is the first time an employee has successfully established liability to him from the parent company. Some people are claiming this is an attack on the separate legal personality principles, fundamental to company law. The case of Adams v Cape [1990] Ch 433 affirmed that a group of companies was not one legal entity. Each individual company in a group has its own legal personality. Whilst at first glance one may think this is open to abuse by having a rogue trader set up a number of companies to avoid liability this very rarely happens in practice. On the contrary allowing a group company to have different legal personality is beneficial for reasons such as diversification in business or due to geographical locations. Arcadia may be a good example of this. Furthermore, there are market forces that, at some level, prevent the abuse by parent companies of their subsidiaries, especially if they have similar creditors or suppliers.

Returning to the Chandler case the court found a duty of care was owed by the parent company to the employee of the subsidiary. The court of first instance had applied the test for how a duty of care is established, which is highlighted from the case of Caparo Industries v Dickman [1990] 2 AC 605 that a duty of care is owed if there is:
1) Reasonable to foresee harm
2) Proximity
3) Whether it is fair, just and reasonable for a duty of care to be owed

So, it may not come as quite a surprise that a duty of care was owed by the parent company to the employees of the subsidiary when one looks at this test. If the facts of the case demonstrate this three criteria then stringent rules of separate legal personality should not prevent a duty of care being owed. That would effectively, and excuse my limited knowledge of tort, go against basic principles that developed from Donoghue v Stevenson [1932] UKHL 100. To the effect it would basically imply if the parent company could not be liable then a manufacutrer of goods could not be liable to an eventual purchaser due to an intervening supplier of the goods after production.

And one must argue that the facts of the case do support a duty of care being owed. Here the parent company had superior knowledge of the health and safety of the particular industry; the parent company knew, or ought to have known that the subsidiaries system of work was unsafe; The parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using the superior knowledge for the employees' protection and it was not necessary to show the parent company often interfered with the health and safety practices of the subsidiary. The court will look at the relationship between the companies more widely.

So is this piercing the corporate veil and ignoring the principle of separate legal personality for different companies in a group. The court was emphatic in rejecting such a notion. They note the question was simply whether the parent company owed a duty of care. An article written by Eccles suggest that this does pierce the corporate veil. But his arguments as to why seem to be merely restating the facts and recognised law in relation to duty of care, rather than stating why the veil has been pierced here.

He notes this pierces the corporate veil...'but only on the basis of an existing concept of assumption of responsibility - Caparo Industries v Dickman'. As you can see he merely restates that a duty of care was owed under the existing principles. A person who takes certain responsibility will owe a duty of care if the facts satisfy the criteria above.

I would agree with Eccles though that in practice companies with subsidiaries may want to review any existing insurance policies if this has been overlooked.

For the corporate veil to be pierced one needs to ask if the two separate companies are being treated as one for the purposes of liability. The answer here is no. The parent took on a duty of care through its (in)actions. Thus, the court recognised the parent company's separate legal personality and was not piercing the corporate veil to say the parent and the subsidiary were one. Perhaps further work in light of quite a few new cases, see here here and here, on this topic needs to seek a more accurate definition or categories of when the corporate veil will be pierced.