NOTES OF CASES
| Date | 01 January 1941 |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb00775.x |
| Published date | 01 January 1941 |
NOTES
OF
CASES
22
I
NOTES
OF
CASES
Company
-tion.
Contrack
of
Employment
The facts in
Nokes
v.
Doncaster Amalgamated Collieries,
Ltd..
[I9401
A.C.
1014,
are far from exciting, yet the decision deserves pride of
place in any textbook concerned with the “rights
of
man” in modern
social conditions. The appellant had been a miner in the services of the
Hickleton Main Colliery, Ltd. By an order of the Chancery Division
made under
s.
154 of the Companies Act,
1929,
the employer company
was, together with a number
of
other mining companies, amalgamated
into the respondent company.
All
the old company’s property, rights,
powers, liabilities and duties were transferred to the respondent company,
and the old company was dissolved. This order took effect on 4th June,
1937,
but the appellant who knew nothing of the amalgamation (not to
speak of the order of the Court and its legal implications) continued to
work in the mine and to receive his wages until, on 7th October,
1937.
he absented himself from work for one day (presumably in the course
of a strike, though the report does not say
so).
When the respondent
company tried to make him liable for damages under the Employers and
Workmen Act,
1875,
he argued that there was no contract between
him
and the respondents, and succeeded before the House of Lords
(Viscount Simon, L.C., Lords Atkin, Thankerton, and Porter, Lord Romer
dissenting) after having failed before all the judges previously concerned
with
the
case.
Before the Companies Act,
1929,
came into force, a company amal-
gamation, unless effectuated by an exchange of shares or by a sale under
the memorandum of association, necessitated the winding up of the com-
panies, which were to
be
merged in
a
new company. But under
s.
154
of the Companies Act,
1929,
the Court,
i.e.
a judge of the Chancery
Division, may, either simultaneously with the order sanctioning the
amalgamation scheme, or subsequently, transfer the whole or any part
of its undertaking and of its property and liabilities from any transferor
to the transferee company, and at the same time dissolve, without winding-
up, the transferor company. The transfer order thus takes the place of the
various assignments, conveyances, etc., which otherwise would have been
necessary in order to vest the old company’s assets in the new one. The
question before the House of Lords was this:
Is
the section of a merely
procedural character, does it merely simplify the machinery of transfer, or
does
it,
in
the words of Lord Romer, give to the Court the power “to
transfer to,
or
vest in, the transferee company
. .
.
property and rights of
a
transferor company which the latter company is itself incapable of
assigning,
or
which it can assign only with the consent of some third party
whose consent to the transfer has not been obtained
”
?
And in particular
:
Does a transfer order operate as an assignment
of
contracts of employment
which, apart from the transfer order, the transferor company could not
have assigned without novation,
i.e.
without the concurrence of the other
party to the contract, the employee
?
The answer to this question obviously depended in the first place on
the interpretation
of
s.
154.
What is the meaning of “property” in the
subsection dealing with transfer orders? There
is
what purports to
be
a
dsfinition subsection, defining “property”
as
“property. rights and powers
of
every
description.” This “definition” is not entirely meaningless.
It
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