Lest we be judged by the company we keep, in Europe...

Europe needs a company law framework that is adapted to the needs of the society of today and to the evolution of the economic environment.

So asserts a press release from the European Commission, which has launched "an in-depth consultation on the future of European company law". Read the full press release here.

The issues to be investigated are:

• Objectives and scope of European company law – What should be the main objectives of European company law? Are the current rules fit for today's challenges? In which areas is there need for further evolution? What relationship between company law and corporate governance?

• Codification of European company law – should the existing company law Directives be merged in a single instrument in order to make the regulatory framework more accessible and user-friendly?

• The future of company legal forms at European level – What are the advantages and shortcomings of European company forms? Do existing company forms need to be reviewed? Should alternative instruments be explored?

• Cross-border mobility for companies – What can be done to facilitate the cross-border transfer of a company's seat? What if a company splits into different entities cross border? Should the rules on cross border mergers be reviewed?

• Groups of companies – i.e. a set of companies under a single management or source of control – Is there need for EU policy action in this field?

• Capital regime for European companies – Should the existing minimum legal capital requirements and rules on capital maintenance be modified and updated?

For more information, and to participate:

http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=companylaw2012

It all sounds very positive. (Noticeably absent from the above list is anything about taxation and the use of corporate structures to facilitate strategic reductions in tax liability (aka avoidance), and more obviously crooked conduct such as cartelisaton.)

Meanwhile, to keep up to date with the most relevant recent domestic and European court decisions on company law, and the law as it affects companies and other commercial bodies, subscribe to the Business Law Reports from ICLR.

This year, so far, we've had cases on Banking, Competition, Conflict of Laws, Contract, Copyright, Damages, Patents and Trade Marks, and in the pipeline for next month we've also got cases on Agency, Injunctions, Partnerships and Passing Off.

Bus LR: WHEN IT COMES TO LAW REPORTING... WE MEAN BUSINESS

What do a 13th century elm coffer, the Audit Commission Act 1998 and debt relief orders have in common?

They can all be found in the February part of The Public and Third Sector Law Reports.

Some of you may be familiar with the bags of brightly coloured sweets containing liquorice and coconut that were popular in my childhood. Each sweet was different but delicious in its own individual way. This month’s PTSR contains a similarly varied assortment of public and ecclesiastical law cases for specialist lawyers to savour and (metaphorically) chew on. Three of them are particularly worthy of mention.

In re St Ebbe with Holy Trinity and St Peter-le-Bailey, Oxford [2012] PTSR 235 will be of particular interest to ecclesiastical lawyers. It is a cautionary tale of a church’s forgotten treasure: a pair of wooden chests, one a rare 13^th century elm coffer, “sold” at auction without the necessary authorisation and further “sold” on. Rupert Bursell QC Ch reminds us that a faculty (permission) is required for the lawful disposal of church property (which belongs to the parishioners). Serious and important consequences followed, since without such a faculty “no legal ownership … passed to any subsequent possessors.”

Quoting Halsbury’s Laws of England, the chancellor emphasises that “ecclesiastical law … is as much part of the law of the land as any other part of the law.” Those “who acquire goods which clearly come from a church and in particular dealers in the antique trade … should take steps to satisfy themselves that those responsible for selling goods … had authority to do so.” (See In re St Mary’s, Barton-upon-Humber [1987] Fam 41, 56.) That reminder, says the chancellor, applies equally to auctioneers.

R (Veolia ES Nottinghamshire Ltd) v Nottinghamshire County Council [2012] PTSR 185 concerns the important balance between the right of “persons interested” to inspect a council’s accounts under section 15(1) of the Audit Commission Act 1998 and the right of those who contract with councils to protect their confidential, commercially sensitive information. Cranston J [2010] PTSR 797 had permitted an elector to inspect and copy documents relating to a waste management PFI contract between the claimant company and the council, notwithstanding that that would result in a breach of commercial confidentiality. The Court of Appeal holds, in effect, that disclosure of documents falling within section 15 of the 1998 Act can be restricted in order to protect valuable commercial confidential information, where disclosure would unjustifiably infringe the rights of the owner to the peaceful enjoyment of his possessions under article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. In relation to the documents in issue before Cranston J, disclosure of confidential information had already taken place, but the Court of Appeal’s ruling applied to other documents, not before the judge at first instance, for which inspection had subsequently been sought.

R (Cooper) v Secretary of State for Work and Pensions [2012] PTSR 310 asks whether, during the moratorium period of a debt relief order, the Secretary of State can continue to recoup by deduction from that person’s current benefit payments an overpayment of benefit or social fund loan that is included in the qualifying debt. The Supreme Court says not. Recovery by the creditor of the overpayment or loan is a “remedy in respect of the debt” precluded by section 251G(2) of the Insolvency Act 1986, as amended, during the moratorium period, and thereafter (subject to certain exceptions) the qualifying debts are discharged. Moreover, the court did not see

“any reason to distinguish between the DRO scheme and bankruptcy in this respect … The Secretary of State loses the power to recoup overpayments and social fund loans on the making of a bankruptcy order just as he does on the making of a DRO” (see eg para 23).

As the court says, it must be for the Government to consider whether to achieve a different result by amending legislation.

The editor, PTSR

[Guest post by Isobel Collins, Editor of the Public and Third Sector Law Reports]

Law Reports Not Meant To Be “Funny”

NOT THE TIMES LAW REPORT

In re A Law Reporter

Royal Courts of Justice Rm 716

Before: Mr Editor Sutherland

Date: sometime in 1982

It is not the task of a law report to make fun of the law, or of those (such as judges) put in office to administer it.

The Editor of the Times Law Report, Mr Iain Sutherland, so stated in 1982 when admonishing a young barrister who had recently joined the Incorporated Council of Law Reporting for England and Wales and who, in order to enliven a dull afternoon, and confident that the Editor would be alert enough to detect and remove them, had inserted a number of facetious remarks into the otherwise dry narrative of his law report.

HIS EDITORSHIP said that the law reporter in question had spent much of the morning taking down a lengthy extempore judgment in the Queen’s Bench Divisional Court. He had then sought to enliven the afternoon task of writing it up for the Times Law Report by inserting a number of remarks along the following lines.

“His Lordship rambled on in this fashion for several more hours while the parties and their legal representatives yawned appreciatively.”

To take another example:

“His Lordship at this point accidentally dropped his copy of the Supreme Court Practice (otherwise known as ‘the White Book’) causing the learned associate to sit up suddenly, knocking over the water jug and soaking the usher’s book of word game puzzles.”

It was lucky, in the Editor’s opinion, that these egregious interpolations, typed up as normal and taken away with other copy by the messenger boy to Gray’s Inn Road for setting by the compositors, had later been detected and removed at proof stage by someone who, it went without saying, knew his job. But what if, on the way to Gray’s Inn Road, he had been knocked down by a bus and, in his absence, the uncorrected proofs had been set on the page and printed just as they were?

Whereas the law reporter’s first concern in those circumstances might have been for the health of his accidentally injured editor, it was evident that the conscientious editor’s first concern would have been for the judicial victim of the supposedly humorous insertions and the regard of the Bench as a whole for the Times Law Report.

As the late AP Herbert noted in his law report of Rex v Haddock (1935), “People must not do things for fun. We are not here for fun. There is no reference to fun in any Act of Parliament.” (AP Herbert, Uncommon Law.)

Lest the above report give the impression that the Editor was a dour Scot with no sense of humour, let it be recorded that nothing could be further from the case, and that as colleague, drinking partner, fellow member of the High Court Journalists’ Association and lifelong friend, Mr Sutherland has been unashamedly amusing good company. But law reports should be, and are, an entirely serious matter.

As to why this report is not signed, see the report of Practice Direction (Naming and Shaming: Writers and Editors) (below).

**************

TIMES LAW REPORT

Practice Direction (Naming and Shaming: Writers and Editors)

Whereas it had always been the practice of the Times Law Report to be absolutely fearless in “naming names” when it came to errant judges, negligent barristers and frankly appalling solicitors, that did not mean the practice need be extended to those writing or editing those same reports.

The Editor of the Times Law Report, sitting at his desk in the Royal Courts of Justice in November 1982, so stated when reminding a young reporter that he was wasting his time in asking for a by-line to publicise (sorry, authenticate and lend weight to) his efforts in capturing the latest examples of judge-made law in the Queen’s Bench Division.

HIS NIBS said it was well known that the Times Law Report was edited by a barrister of Gray’s Inn, where naming and shaming was an after dinner sport of some antiquity, and that he was qualified as necessary, having served a pupillage with Mr David (now Mr Justice) Eady in Chambers at One Brick Court in the Temple, and that there was no need to spell it out for the punters.

Furthermore, and notwithstanding the general practice of naming and shaming, that did not extend to law reporters, who should remain nameless (and therefore, by implication, shameless).

Good bye (line)

*********************

Note

The above tribute was included in a mock-up of the front page of The Times presented to Mr Iain Sutherland at a party held at the Supreme Court on Thursday, 2 February 2012, to mark his retirement after 30 years from the post of Editor of the Times Law Report.

Lest anyone be in any doubt about the matter, the alleged reports reproduced above are NOT capable of being cited in court as authority for anything. Nor are they in any sense a fair and accurate report of any actual court proceedings that may or may not have taken place at or about the stated date, or at all.

Tickets are now on sale for the ICLR’s 2012 Annual Lecture "Our Lady of the Common Law"

The ICLR will be holding their 2012 Annual Lecture on Thursday 1st March 2012 at The Law Society. The Right Honourable Lord Justice Laws will be taking the lecture, entitled "Our Lady of the Common Law".

Tickets are priced at just £5 each (plus a 95p booking fee) and are free to students (please note that student tickets are limited). The event offers 1 CPD hour from the Bar Standards Board.


The event will begin at 6pm in the Common Room and drinks will be served from around 7.15pm, when attendees will be able to discuss the subject matter with Lord Justice Laws and members of the ICLR editorial team.

To buy your ticket please visit http://iclral2012.eventbrite.co.uk/ or follow the link from www.iclr.co.uk.

The Right Honourable Lord Justice Laws and the ICLR look forward to seeing you at the event.

BabyBarista – Pupillage and How to Survive It...

It’s that time of year again, when the Target Jobs Pupillage Fair is looming. With this in mind BabyBarista has offered some vital tips for pupils who will be taking the leap from College to Chambers.

It seems that there is an array of tips to keep pupils on top form and in their pupil masters' favour; from shiny shoes to the all important “stash of chocolate biscuits”. For more helpful hints head over to BabyBarista...

The above image is courtesy of the BabyBarista blog (illustrated by Alex Williams)

And if you’re heading to the event on Saturday 3rd March 2012 at Lincoln’s Inn do come along to the ICLR stand to collect your FREE ‘How to survive pupillage kit’.