Forthcoming publication in the ICCLR

Just a quick Sunday evening blog post.

You may remember I blogged about the court's power to order shareholder meetings a couple a months ago (see here).

Well in some PhD/teaching off time I thought I would write a case comment about the case of Wheeler v Ross.

I submitted it to the International Company and Commercial Law Review and they have agreed to publish it. So, watch this space! I estimate a 2012 release date.

As to my PhD. I have substantively begun learning about statistics to apply quantitative analyses in my research. Some concepts are definitely easier than others. Confidence intervals are proving a bit of an obstacle but I will put it down to being Friday afternoon.

Teaching has begun and is in full swing. I am teaching first and second semester company law seminars this year; contract law seminars in the second semester; and have begun running 3rd year undergraduate pastoral sessions, which students seem to be finding very beneficial.

Now things are up and running again, I will have more time to blog. Mondays are very busy days though with 4 hours of teaching; 2 hours of a methods of social enquiry course; and 1 hour of drop in sessions for students. Fortunately, organising my Excel data is pretty easy to fit in round teaching and classes.  

Fiduciary Law Publications

The Boston University Law Review has recently published a series of articles in its journal on fiduciary law.

These publications are the result of a symposium on 'The Role of Fiduciary Law and Trust in the Twenty-First Century'.

Panel 1 publications focused on the nature of fiduciary law and its relationship to other legal doctrines and categories. This panel includes a publication from Prof. DeMott on 'Causation in the Fiduciary Realm'.

Panel 2 was on interdisciplinary views of fiduciary law and includes an excellent article by Sitkoff on the 'Economic Structure of Fiduciary Law' which summarises some of the economic approaches to fiduciary law.

Panel 3 addressed current issues for fiduciary law although I think a more accurate title would have been continuing trends or problems in fiduciary law. Suprisingly there was no specific article on multiple directorships with analysis focusing on issues such as remuneration, public interest and accountability; all of which have been discussed to a large degree.

Finally, panel 4 looked at private servants and private fiduciaries. Perhaps the most relevant one of these papers looked at CEOs and limits on their terms.

Hopefully some of these papers will continue to provide me with valuable insight in to my analysis of directors' fiduciary duties.

These articles can be found on HeinOnline citation (2011) 91 B. U. L. Rev. 833.

TRIGGER - Municipal Mutual Insurance Limited v Zurich Insurance Company and Adur District Council: What triggers insurers' liability to the insured?

An interesting case is due to be heard in the Supreme Court this year regarding what "triggers" for liability of an insurer to indemnify the insured within any policy period.

It is of particular interest because of the facts and the fact Adur District Council is my home town local council.

The point in question is in regard to the construction of the employers' liability policy, which provided an indemnity if an injury or disease is sustained or contracted during the period of insurance.

Nine appeals are being heard by the Supreme Court regarding six separate actions. They arise from the deaths of employees who contracted mesothelioma who inhaled asbestos fibres during employment. The employee's personal representatives or the employers liable to them are seeking to recover from the employer's insurers under policies of the employers' liability insurance covering periods from the late 1940s to 1998.

The principle issue is what triggers liability for an insurer to indemnify the insured: in particular whether it is tortious exposure of a victim to asbestos dust or the onset of mesothelioma.

The policy logically was in force when the asbestos dust was inhaled but not 40 years later when the disease manifested itself.

The Court of Appeal decision can be found under the citation [2010] EWCA Civ 1096 containing 352 paragraphs and 113 pages on the PDF download from Westlaw.

The High Court had originally disagreed with the insurers that the disease had only be contracted when it manifested itself as a tumour and asserted that it had done so when the employees inhaled the dust.

Rix LJ and Stanley Burton LJ allowed the appeal in part. 

Rix LJ stated that "sustaining" an injury prima facie looked to the injury and not the cause. However, accordingly the phrase "disease contracted" prima facie referred to the disease's causal origins. Also, the commercial purpose of the insurance pulled towards the causal origins of the disease and the Court of Appeal stated that the commercial purpose should prevail.

In obiter Rix LJ also stated that a decision in the case of Bolton [2006] EWCA Civ 50 was doubtful, but was bound by precedent, which concluded that mesothelioma was not an "injury" until its onset. He continued that it was the risk of mesothelioma created by exposure which was the damage.

Stanley Burton LJ believed there was little gained in discovering the commercial purpose of the policy and one must look to the terms of the policy. He opined that the disease was caused in any year there was substantial exposure to asbestos.

Smith LJ dissented in part but believed the judge in the high court had been right to find there was no difference between a policy which used "sustained" or "causation" wording. Policies with "sustained" wording had to cover employers liable in respect of tortious exposure of an employee during the policy period.

The Supreme Court hearing is due in December.