The Take‐Over Panel and the Courts
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02582.x |
| Date | 01 May 1987 |
| Published date | 01 May 1987 |
372
THE
MODERN
LAW
REVIEW
[Vol.
50
the proposition in
Whelan
v.
Jasl0wZ7
perhaps the time has come to
ask whether, in practice, we are still talking about copyright at all.
ANNE STAINES
THE
TAKE-OVER
PANEL
AND
THE
COURTS
IN
R.
v.
The Panel on Take-overs and Mergers ex parte Datafin and
Prudential-Bache Securities Inc.
,’
the Court
of
Appeal decided to
extend the mantle
of
judicial review to a private regulatory body
with no statutory, prerogative or common law powers. At one
stroke the supervisory jurisdiction
of
the High Court has been
enlarged to cover an infinite variety
of
decision-making bodies and
the “private” has become not just “political” but “judicial” as well.
The Panel on Take-Overs and Mergers is an unincorporated
association established to develop, administer and interpret the
City Code on Take-overs and Mergers. The Panel is made up
of
a
Chairman and Deputy Chairman, appointed by the Governor
of
the Bank
of
England, together with the chairmen
of
certain
associations representing various financial interests which operate
in the City
of
London. The Panel works on a day-to-day basis
through its executive which is largely staffed by temporary
appointments from city firms but is headed by a permanent
Director-General and two deputies.
He
or one
of
his deputies is
available to give rulings on points
of
interpretation of the Code or
for consultation before or during take-over or merger transactions.
Cases can come before the Panel either because the executive itself
regards a particular case as sufficiently important to require a
ruling by the Panel or because one or more parties to a take-over
bid wishes to appeal against a decision
of
the executive. When
hearing the case the Panel does not necessarily restrict itself to the
precise point which is the subject
of
the referral or appeal, but
regards itself as quite free to consider other points which might
arise during the course
of
argument.2 Thereafter there is a further
right
of
appeal to the Appeal Committee made up of a Chairman
and three members
of
the Panel who were not involved in the
decision under appeal. The appeal in this instance however is
restricted to cases where either the Panel has found a breach
of
the
Code and proposes disciplinary action
or
where it is alleged that
the Panel has acted outside its juri~diction.~
27
vir.
that the logic behind a system intended
to
achieve a functional purpose is
protectable without reference
to
what would traditionally
be
regarded as fixed literary
ex ression.
[1987]
2
W.L.R.
699. Thanks are extended
to
the Panel on Take-Overs and Mergers
for
giving me a copy
of
the judgment
of
this case.
See
Sir Alexander Johnston,
The
City
Take-Over Code
(1980), p.130.
’
An appeal may also lie, with leave of the Panel, against decisions which, although
not strictly
of
a disciplinary nature, inflict in the view
of
the Panel serious hardship on an
individual
or
company.
No
appeal however lies against a finding
of
fact
or
against a
decision
of
the Panel on the interpretation
of
the Code.
See
generally The City Code on
Take-Overs and Mergers (March 19, 1985).
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