Corporate Knowledge: Identification or Attribution?
| Published date | 01 September 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02689.x |
| Author | Ross Grantham |
| Date | 01 September 1996 |
The Modern Law Review
[Vol.
59
compensation as a result of administrative decisions which cannot
be
appealed and
are difficult to change.’24
The approach of the Court in
Wheeler
is redolent of earlier times, when the
courts took their position
in
the first line of defence of private propert
ri
hts
in
the
face of industrialisation; Page-Wood V-C in
Att Gen
v
Birmingham
defended an
injunction preventing Birmingham Corporation from disposing of its sewage in the
River Tame, thus:
I
am not sitting here
as
a
committee
of
public safety, armed with an arbitrary power to
prevent what, it is said, will
be
a great injury to Birmingham only, but to the whole of
England
.
.
.
My function
is
only to interpret what the legislature (the proper body to which
all
such arguments should
be
addressed) has considered necessary for the town of
Birmingham.
The stance of the Court of Appeal in
Wheeler
and the present case is to
be
welcomed. The contradictions inherent in a system which grants planning permis-
sion with the one hand and penalises that activity with the other are more apparent
than real, particularly when viewed from the larger economic perspective. Other
systems allow similar inconsistencies in regulating land use; the article of the
French Code for example, which deals with negligence, insists on an
element
offaute
on the part of the defendant; this is applied regularly in nuisance
actions even where the party is not at fault at all, because he has received admini-
strative approval for his business and has done his best to avoid undue harm to
neighbouring land.
So
any party profiting out of a business, even where that business
is of some use to the public, must still alleviate any special hardship it entails for his
neighbours. The tort of nuisance performs a similar function in this country and, in
view of the upsurge in environmental litigation over the past two decades, it is
regaining the
status
it enjoyed during the early years of mass industrialisation.
2:
Corporate Knowledge: Identification or Attribution?
Ross
Grantham
*
The ascription to a company of the action, knowledge and fault of an individual has
until recently been on the basis either that the individual was identified as the
company
or
was the company’s agent. In its recent decision in
Meridian Global
Funds Management Asia Ltd
v
The Securities Commission,’
the Privy Council has
rejected the identification approach and suggested that the principles of agency are
but one aspect of the true principle upon which a company is bound, that of
attribution.
The case arose out of an abortive attempt to gain control of Euro-National
Corporation Ltd (‘ENC’), using its assets to fund the acquisition. In a complicated
24
[1995]
3 WLR 466,480.
25
(1858)
4
K&J 528.
26 Zweigert and Kotz,
An
Introduction
to
Comparative
Law
(Oxford: Clarendon, 2nd
ed,
1994)
p
661.
*Senior Lecturer, University of Auckland.
1
[I9951
3 WLR 413, Lords Keith, Jauncey, Mustill, Lloyd and Hoffmann. The opinion was delivered
by Lord Hoffmann.
732
0
The
Modem
Law Review
Limited
1996
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