The Gazette 1990

GAZETTE

JULY/AUGUST

1990

possessory security and other equitable rights. Part three deals with transfers of interests: this is subdivided into (a) gifts inter vivos, transfers of tangible property for value (sale of goods, other contracts of transfer, transfers on credit, assignments of choses in action, negotiable instruments) and (b) other transfers including transfers on death and upon insolvency. Part four deals with the persistence of interests, specifically tracing, title conflicts, priorities, ancf limitation issues. This book is a scholarly achieve- ment of a very high order. In stating the law in both Irish jurisdictions, and in England, the author refers to an enormous wealth of case and statute law. The Irish material is particularly valuable to practitioners here, since very little of it is referred to elsewhere. The book is not only useful as exposition, it is also a genuinely compa r a t i ve wo r k, explaining how and why the law in England, Northern Ireland, the Republic, and to a lesser degree, in Scotland, is the same or is different as the case may be. With the advent of the single market, and the fact that already trade with the U.K. constitutes such an important part of our export and import relationships, this is a particularly useful aspect of the book. This comparative element in no way detracts from the author's ability to present t he law clearly and critically. A caveat to these plaudits follows. I do not feel that the practitioner can rely on this work for a complete answer to questions which may arise in the areas covered. Thus, for example, although the book has an extensive chapter on the sale of goods, this chapter is too narrow in scope and detail to provide anything other than an outline solution to many practical problems on the sale of goods which may face the practitioner. Likewise, although the work has many references to pledges and pawns, and cites many interesting and important cases, it does not deal comprehensively with this field. The insolvency section is narrow in scope. This is not to suggest that the book has any particular failures in these areas; they are cited purely to exemplify the deficiencies inherent in painting a picture of so

many different areas of law. The positive side of this is that the reader can from the confines of this book obtain a state of the art picture of the whole of personal property. Granted that there is such a topic as personal property, and granted that personal property compre- hends so many separate fields, and again granted that each of these fields is already covered by a multiplicity of monographs and textbooks and articles, I would have thought that the next edition of this work might be a collaboratively written multi-volume synopsis of the law in each of the areas covered in the present book. However, to return to the note of unqualified praise with which this review commenced, the book re- mains a marvellous achievement: beautifully produced, well-indexed, clearly and elegantly written, and an example of legal scholarship for those of us in this particular trade to study, admire and strive to emulate. DR. DAVID T OM K I N M I NOR I TY S H AR E HO L D E R S' R I GH TS By Robin Hollington (London: Sweet & Maxwell, 1990). IRE32.25. A dilemma wh i ch has to be addressed by all those concerned with rules governing the function- ing of groups of all kinds is that of defining the limits of majority power. This problem in the context of modern company law is the f ocus of Robin Ho l l i ng t on 's attention in this book. Starting with the familiar rule in Foss -v- Harbottle the author first examines the efforts made by the courts to limit majority excesses before the intervention of legislators. By dealing with equitable exceptions to the principle of majority rule without mingling the discussion with a consideration of the English equivalent of Sections 205 and 213 (f) of the Companies Act, 1963 (hereafter " t he 1963 Ac t ") he gives it a clarity of isolation not commonly encountered. There is a very useful discussion of the circumstances in which votes of particular shareholders will be disregarded and more valuably a

consideration of the consequences of such disenfranchisement. He argues that in the context of the entitlement to bring a derivative action the exclusive attention focused by many authorities on causes of action wh i ch are ratifiable by a majority of share- holders and those which are not is misplaced and that another vital question is whether the conduct of the wrongdoers is such as to disenfranchise them on a vote to initiate proceedings. With sound logic but little authority he argues that the availability of a derivative action should not depend on fraud on a minority (or, presumably, in an Irish context on the exercise of the power in bad faith as in Nash -v- Lancegaye Safety Glass (Ireland) Ltd.) but should be available in any case where a company suffers loss even as a result of the mere negligence of controlling directors. He speculates that on the authority of the decision by Megarry V-C in Estmanco -v- G.L.C. (1982) a court might at an interlocutory hearing regard an attempt by controlling directors/shareholders to stifle pro- ceedings against themselves as an abuse of power thus bringing the motives of those controllers under scrutiny even in the case of ratifiable wrongs. Interesting as this speculation may be, Irish readers should bear in mind the decision of the Supreme Court in P.M.P.S. Ltd. and Moore-v-A.G. (1984) concern- ing the constitutional implications of an individual shareholder's voting rights. He goes on to discuss the meaning, relevance and significance of control in derivative actions and the question of costs. This entire chapter (Chapter 2) is well ordered, clear and stimulating and while all the cases examined are English the Irish reader would derive considerable benefit from this treatment of them as in this area the law on each side of the Irish Sea has not yet significantly diverged. In the next chapter he considers the English equivalent of our Section 213 (f) of the 1963 Act - w i nd i ng - up on the just and equitable ground. He examines, inter alia, locus standi, requirement of tangible interest in the winding-up, ex- amples of the most common circumstances in which these petitions are successful and the

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