j.1468-2230.1968.tb01206.x - THE MODERN L A W R E V I E W ~...

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THE MODERN LAW REVIEW ~ Volume 31 September 1968 No. 5 THE COMPANY AS A SEPARATE LEGAL ENTITY UNDER English company law the company is a separate legal entity. Yet, although this is a fundamental concept, it has proved extremely intractable to define and to describe satisfactorily. The difficulties experienced by the courts from time to time in separating the company as a legal entity from its members are evidenced by the remarkable range of judicial expletives or, in Younger L.J.’s phrase, term[s] of polite invective,” which they have used on appropriate occasions to describe corporations, including, for example, a mere nominee,” a mere fraud,” an agent,” a trustee,” a mere device,” a myth and a fiction,” a pre- tended association,” an unreal y’ procedure, ‘‘ a cloak,” an artificial legal thing,” a legal abstraction,” mere machinery,” ‘( a metaphysical con- ception,” a sham or bogus,” lo an abstract conception,” l1 a simulacrum,” la a cloak,” lS a mere alter ego,” l4 an abstract being,” a creature,” a screen and even a bubble,” an alias,” a name,” 1 2 3 4 1 0 7 8 0 11 12 13 14 15 16 17 I.R.C. v. Sansom [1921] 9 K.B. 499 at p. 614 (C.A.). Rroderip v. Salmon [l895] 9 Ch. 323 &t pp. 330, 331, 3%. 999, 341. Salomon v. d Co. [1897] A.C. 22 rtt p. 39. Re Carl Hirth [lam] 1 Q.B. 61% at p. 619. AtLCen. for Dominion of Canada v. Standard Trust Co. of New York [1911] 498 606. Re Darby [1911] 1 K.B. 95 at Continmtal Tyre d Rubber &. (G.B.) Ltd. V. Daimler Ltd. [1916] 1 K.B. 893 at p. 916. Ibid., rub nom. Daimler Co. v. Continental Tyre 1 [1916] 2 307 st p. 316. Lennard’s Carrying Asiatic Petroleum Co. [lOlS] 705 at 715. R. v. Grubb [19151 2 R.B. 683 at p. 691. Houghton d Co. Nothard, Lome and Wills [l928] 1 at p. 14. E.B.M. Co. Dominion Bank [1937] 3 All E.R. 666 563. Gilford Motor Co. Ltd. v. Home [1933] Ch. 936 at p. 966. Pegler Craaen [1952] 2 Q.B. 69 at p. 79. Austin Reed Ltd. Royal Assurance Co. (July 18, 1966, C.A., not reported; but cited [1966] 3 All E.R. 699). Lithgozos Ltd. (1960) 39 T.C. 97?, p. 276. In the same vein a company has been likened to a motor-car : BarclEys Bank Ltd. [1959] 659 at p. 671, by Lord Evershed M.R.: The company ia in thia respect like a motor-car the speed and direotion of which is controlled by the driver. . . .” Barclays Bank [1960] 3 W.L.R. a80 et p. 288. 101. 481 VOL. 31 17
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482 THE MODERN LAW REVIEW VOL. ai " black sheep." In Re Bugle Press Ltd.,lg Harman L.J. added " a hollow sham yy and an " elementary . . . device," going on to elaborate in more picturesque language " . . . the transferee company was nothing but a little hut . . ." whose legal existence could be likened to c' the walls of Jericho ,'-" The minority share- holder has nothing to knock down, he has only to shout a1 and the walls Jericho fall flat." The apparent need to resort to such terms indicates an unexpected degree uncertainty on the part the courts some occasions when dealing with the separate existence the company.22 Relatively few writers English company law have made a determined attempt to unravel what R. S.
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This note was uploaded on 09/05/2011 for the course ECO 103 taught by Professor Mary during the Spring '11 term at FH Joanneum.

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j.1468-2230.1968.tb01206.x - THE MODERN L A W R E V I E W ~...

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