Separate Legal Personality Company Law Essay Topics

Explain how the concepts of separate legal personality and limited liability give rise to the circumstances Gilbert and Sullivan describe. Do you think that the law goes far enough in disregarding, or avoiding the consequences of, separate legal personality, when justice requires it to do so?

Some seven men form an Association
(If possible, all Peers and Baronets),
The start off with a public declaration
To what extent they mean to pay their debts.
That’s called their Capital; if they are wary
They will not quote it at a sum immense.
The figure’s immaterial–it may vary
From eighteen million down to eighteenpence.
I should put it rather low;
The good sense of doing so
Will be evident at once to any debtor.
When it’s left to you to say
What amount you mean to pay,
Why, the lower you can put it at, the better.

Chorus: When it’s left to you to say, etc.

They then proceed to trade with all who’ll trust ’em
Quite irrespective of their capital
(It’s shady, but it’s sanctified by custom);
Bank, Railway, Loan, or Panama Canal.
You can’t embark on trading too tremendous–
It’s strictly fair, and based on common sense–
If you succeed, your profits are stupendous–
And if you fail, pop goes your eighteenpence.

Make the money-spinner spin!
For you only stand to win,
And you’ll never with dishonesty be twitted.
For nobody can know,
To a million or so,
To what extent your capital’s committed!

Chorus: No, nobody can know, etc.

If you come to grief, and creditors are craving
(For nothing that is planned by mortal head
Is certain in this Vale of Sorrow–saving
That one’s Liability is Limited),–
Do you suppose that signifies perdition?
If so, you’re but a monetary dunce–
You merely file a Winding-Up Petition,
And start another Company at once!
Though a Rothschild you may be
In your own capacity,
As a Company you’ve come to utter sorrow–
But the Liquidators say,
“Never mind–you needn’t pay,”
So you start another company to-morrow!

Chorus: But the liquidators say, etc.

King:

Well, at first sight it strikes us as dishonest,
But if its’s good enough for virtuous England–
The first commercial country in the world–
It’s good enough for us.

An incorporated company, “united or combined into an organised body”, is recognised by law as a separate legal entity, or ‘legal person’ distinct from the separate personalities of the members of the body. The law treats it like “any other independent person” having rights and liabilities. A company, as a legal person, may enter into contracts, own property and even commit crimes. It is this concept of the Company being a fictitious person (then under the ‘Stock Company Act’) ‘Utopia’ ridicules, where Gilbert, in his libretto, toys with the idea that there could be a convergence of natural persons and legal entities.

Where a private company limited by shares owes money, and becomes insolvent, the law holds that since its creditors dealt with the Company – not its individual members – regardless of “the ideas or schemes of those who brought it into existence”, the extent of financial liability of its members is limited to the amount the members agree to pay for their shares: their “public declaration.. to what extent they mean to pay their debts”. Gilbert’s words satirize the consequences of this: if the Company becomes insolvent, the creditors do not get paid, regardless of the personal financial situations of its members. This can be contrasted with a partnership or sole proprietorship, where the owner would be held responsible for all debts of the corporation.

Conversely, where a company owns assets, those assets belong to the Company, not its members: in contrast with a partnership or sole proprietorship, where the owner(s) of the assets are the partners or the proprietor. Members cannot claim an interest as the assets were purchased by the Company, as legal owner which, as in Macaura can be to the detriment of the member.

On occasions, the law is prepared to circumvent the usual consequences of legal personality by ‘lifting’ or ‘piercing’ the veil of incorporation – for example, where a company’s shareholders are using the Company as a device to avoid their responsibilities. In Jones v Lipman, Lipman transferred a property to his company, to avoid having to transfer the property to Jones. The Court held the Company was a “device and a sham, a mask which [Lipman] holds before his face in an attempt to avoid recognition by the eye of equity”.

This does not mean that the Courts will always lift the corporate veil wherever justice requires it. The Courts have vigorously fought against any attempt to allow anyone, let alone themselves, “peer under the skirts of a company”. In Adams v Cape Industries, a company that marketed asbestos set up subsidiaries so that if a customer sued for asbestos-related claims, only the subsidiary would be liable. The bankruptcy of a subsidiary would not affect Cape. The Court held that Cape were entitled to “organise affairs.. so that it would have the… benefit of the group’s asbestos trade in the USA without the risks of tortuous liability”.

Similarly, in Ord and another v Belhaven Pubs Limited a defendant company that was not trading, transferred all of its assets to other companies in its group, and consequently claimants attempted to sue those other companies for the debt the defendant owed. The court dismissed the claim, stating that the transactions were overt and “conducted in accordance with the liberties conferred upon corporate entities by the Companies Act”.

In recent times, the approach would seem to be that the Court will go to any length to avoid any obvious penetration of the corporate veil. In Allen v Amalgamated Construction Co Ltd the European Court of Justice examined the workings of a company to investigate whether transfers between subsidiaries were capable of being a transfer under the TUPE regulations. Similarly, in Pirelli Cable Holding NV v IRC the Court, whilst denying that it was lifting the veil, “availed itself of a jolly good rummage around the internal workings” in order to examine certain facts.

The Courts have on occasion held directors personally liable for their actions. In C Evans & Sons Limited v Spritebrand Ltd, the Court held that, in every case it is necessary to examine with care what part the director played personally with regards to the act complained of. The Court declined the opportunity to formulate a comprehensive definition of circumstances that would always give rise to liability.

More recently, in MCA Records Inc, whilst not setting out general principles, the Court held that per CBS Songs Ltd and Unilever plc v Gilette (UK) Ltd, liability may arise where the individual ‘intends and procures and shares a common design that an infringement takes place’. Consequently, these cases establish that directors can sometimes be personally liable for torts for which the company is also liable. Still, the Courts have retained the principles of separate legal personality and limited liability, and defended the protection they offer. Whilst permitting some ‘rummaging’ under the veil to establish facts, they have severely limited any encroachment on those principles.

We have seen how the principles of separate legal personality and limited liability sometimes result in circumstances that may seem favourable to the Company’s shareholders and detrimental to its creditors. On one hand, there are good reasons for retaining these principles. The Courts feel that to subject individual shareholders or directors to onerous personal liabilities would discourage commercial enterprise. Additionally, whilst creditors are exposed to risk, they are fully aware of this risk: the Company’s Memorandum, a public document, freely states that the company is limited by shares, the liability of its members is limited, and by how much. So when the Company “proceed[s] to trade with all who’ll trust ‘em”, the risk creditors take is easily calculable.

On the other hand, there are cases where, if it were not for company law, other principles would require the Courts find individual members liable for their debts and actions. Cases such as Adams v Cape Industries, where members have deliberately arranged their affairs to avoid liability if sued, are difficult to correlate with equitable principles of justice. The law is moving towards introducing provisions to prevent members abusing the principles to avoid liability for serious crimes and should go further to introduce provisions preventing the avoidance of liability for serious losses.

Bibliography

All England Annual Review (http://www.lexisnexis.com/uk/legal)
Payne, J, MA (1998) Lifting the Corporate Veil, Company Law

Gilbert, W S – Utopia, Limited
(<http://diamond.boisestate.edu/gas/utopia/libretto.txt>)

Halsbury’s Laws of England from LexisNexis (http://www.lexisnexis.com/uk/legal)
Corporations (Volume 9(2) (2006 Reissue)

Halsbury’s Laws of England from LexisNexis (http://www.lexisnexis.com/uk/legal)
Companies (Volume 7(1) (2004 Reissue)

Hill, C, Hubble, P, Longshaw, A, Morgan, T & Roberts, S (2007) W223 Company Law and Practice, Oxford University Press, Oxford

New Law Journal from LexisNexis (http://www.lexisnexis.com/uk/legal)
von Wachter, V (13 July 2007) The Corporate Veil, 157 NLJ 990

New Law Journal from LexisNexis (http://www.lexisnexis.com/uk/legal)
Pedley, P (6 May 2005) Hints for hungry litigators, 155 NLJ 702

Table of Cases

Adams v Cape Industries (1990) Ch 433
Allen v Amalgamated Construction Co Ltd: C-234/98 [1999] ECR I-8643, [2000] All ER (EC) 97
Jones v Lipman (1962) 1 All ER 442
Macaura v Northern Assurance Co Ltd (1925) AC 619
Ord and another v Belhaven Pubs Limited (1998) BCC 607
Salomon v A Salmon and Co Ltd (1897) Ac 22 [1895-99] All ER Rep 33
Table of Statutes
Act to enable Joint Stock Banking Companies to be formed on the principle of limited liability (21 & 22 Vict c 91) (1858)
Companies Act 1985
Corporate Manslaughter and Corporate Homicide Act 2007
Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794)

(i) A company, upon incorporation, becomes a body corporate under s.16(2) of the Companies Act 2006, with which comes its own separate legal personality[1]. Salomon v Salomon[2] identified that a company is not only an association of its members, but also a person separate from its members which is extremely significant as it carries many consequences.

Salomon is the leading case regarding separate personality, stating that once a company is legally incorporated it becomes a legal person with its own rights and liabilities separate from those of its members. One argument against Mr Salomon was that he fraudulently “incorporated the company contrary to the true and intent meaning” of the Companies Act, hence he should be liable for all its debts. However the House of Lords rejected this, reaffirming that the policies of the Act are to enable people to incorporate companies to avoid incurring further personal liability[3] . Lord Herschell rejected another proposed argument concerning agency, holding that a company is not an agent of its members, thus shareholders cannot be liable to indemnify the company’s debts[4] . Lord Macnaghten also noted that even if a business is the same after incorporation, ‘the same persons are managers, and the same hands receive the profits’[5] , the company is not an agent of the subscribers, regardless if it issued the bulk of its capital to one person[6] .

Individuals are permitted to incorporate companies to separate their business and personal affairs[7] , thereby avoiding further personal liability as mentioned in Salomon. This advantageous limited liability is consequential of members being separate persons from the company. Members’ liability is limited to their fully paid share amount[8] or the fixed amount payable by guarantee[9] . The company cannot insist on further contribution nor can the members be liable to cover debts which the company incurred as a separate person. Additionally, the debts were not incurred on behalf of the members since Salomon rendered that no agency relationship exists between them.

Salomon also distinguished that a company’s business is its own as a separate person. A company is hereby entitled to sue third parties, and even its own members as seen in Metropolitan Saloon Omnibus Co Ltd v Hawkins[10] . Moreover, members cannot sue on behalf of the company since the legal rights belong to the company as a separate person[11] .

The company as a person has rights and liabilities sometimes claiming human rights[12] , but the artificial personality does not go so far as to give them human traits, for instance it cannot claim compensation for injury to feelings, since companies do not have feelings as recognised in Collins Stewart Ltd v Financial Times[13] .

Another consequence of this doctrine is that a company’s property is its own, hence neither members nor creditors have any legal or equitable interest in the company’s assets as stated in Macaura v Northern Assurance[14] . Regardless if members have a profitable interest in the assets, the separate personality principle applies even to their detriment, enforcing that the company’s assets do not belong to its owners. Farrar v Farrars Ltd[15] reaffirms this principle, illustrating that a sale by a member to a company is not a sale to himself, since those assets now become company property in which the member has no legal interest.

A company can enter into contracts and transactions, even with its members, as a result of separate personality, whether it is a contract of sale (evident in Farrar) or contract of employment demonstrated in Lee v Lee’s Air Farming[16] . Lee’s ability to function in dual capacities was consequential of the Salomon decision. Furthermore, companies have perpetual existence even after the death of all members (evident in Re Noel Tedman Holdings[17] ) emphasising the principle of separate personality. Thus ownership change and share trading will not affect its continuous existence, unlike partnerships.

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[1] Mayson French and Ryan (2010) Page 127

[2] and Co Ltd [1897] AC 22

[3] First stated in Re Baglan Hall Colliery Co (1870) LR 5 Ch App 346 (p356) but brought up in Salomon by Lord Macnaghten (p52)

[4] See note 2

[5] See note 2

[6] See note 2

[7] Mayson, French and Ryan (2010) Page 127

[8] Insolvency Act 1986, s 74(2)(d)

[9] Insolvency Act 1986, s 74(3)

[10] [1859] 4 Hurl & N 87

[11] Mayson, French and Ryan (2010) Page 126

[12] Mayson, French and Ryan (2010) Page 122

[13] Ltd [2005] EWHC 262 (QB)

[14] Co Ltd [1925] AC 619

[15] [1888] 40 ChD 395

[16] Ltd [1961] AC 12

[17] Pty Ltd [1967] Qd R651

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