CORRESPONDENCE
| Date | 01 May 1970 |
| Author | H. J. L. Phillips |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01279.x |
| Published date | 01 May 1970 |
CORRESPONDENCE
THE
EDITOR,
Dear
Sir,
Were there
no
other
cause,
Professor Wedderburn should
at
least
be
admired for his resilience. Having followed, with misgivings, his views as
expressed in your journal recently
on
Hogg
v.
Cramphorn
[I9661
3
All
E.R.
420 and Bamford v. Bamford [I9691
1
All
E.R.
969,
I
fully expected the
decision of
the
Court of Appeal in
the
latter
case
to
give
him
his quietus;
but he turns even this bare bodkin
aside
with panache.
The Professor chides Harman
L.J.
for having been unaware of certain
‘‘high
authority”:
(1969)
82
M.L.R. 663.
I,
too, was thus unaware;
so
I
looked,
as
directed by note
6
on
that
page,
at
Modern
Company
Law
(2nd
ed.),
p.
612, note
87.
This reads (with my italics):
Thw
teema
to
foUow
from
Pwmt
v.
Syln~~s
. . .
U&orprc~y
v.
H&
Con-
certs
. . . and
PJmcey
v. MiZk . . .
in
all
of which the
krity
were
allowed
to
institute proceedings,
thus
haptying
ffiat
ratification
in
general
meeting would be hefle-ctive: .
.
.
see
ilcfra.
. . . Hence
it
is
submitted
that in the
Sawoy Hotel
case
. . . ratification in
general
meeting would
not
have validated the
transaction.”
This
note
looked more wistful
than
authoritative
to
me, but expecting both
Professor Gower and Professor Wedderburn to have checked their authorities,
I
chased the information given
in
the note.
Only
one
case
(Udbay)
shows
a
minority suing, and
none
support0 the propositions made
for
them. Thus
Professor Wedderburn’s high authority,” with which he flays
the
Court of
Appeal, turns out to be mere whimsy.
The undue awe
in
which Professor Wedderburn appears to hold the views
expressed in
Modern
Company
Law
is
perhaps gently
illumined
by his refer-
ence,
at
(1967)
30
M.L.R.
81,
line 17,
to
Professor Gower having “held” that
where
directors
have acted out of
an
improper purpose,
the
minority
can
me
and there can be
no
ratification.
There
is
much
else
in
these notes and articles by Professor Wedderburn to
suggest that the conceptual muddle-(1969)
82
M.L.R.
668-has overcome not
the
courts
but the professor himself. How, for instance,
can
anyone (not
himself
in
a
muddle) bring
into
a
discussion of the
Foss
v.
Harbottls
principle,
the case of
Re Rdth
Ltd. [I9671
1
All
E.R.
427-see (1969)
82
M.L.R.
563,
note
8.
Foss
v.
Earbottle
concerns
the
right of
members
to
control directors
acting
htra
Yires.
Re Roith
is
a
case
of
ore&tors
attacking
an
ultra
&re8
act
:
the members were not remotely involved.
As
a
teacher of students whose papers
are
likely
to
be marked by
or
under
the
supervision
of
Professor Wedderburn and his disciples,
I
must express
grave misgivings
as
to his views
on
this
matter. May
I
express
the
earnest
hope, if any
mternal
student of London University prefers,
with
the
Court
of Appeal,
to
regard it as trite law that directors can obtain absolution from
their members, that the professor‘s undoubted enthusiasm for his conceptual
muddle will not send that student round
again
for another
go.
The
Modem
Law
Review
Yours
faithfqy,
H.
J.
L.
PHILLIPS.
850
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