Subject-Matter Index

Accounts and reports

delivery of accounts to members

court has discretion under Companies (Guernsey) Law 2008, s.251(6) and s.406(h) to order company to be wound up for failure to provide accounts to members as required by s.251(1)—winding up ordered where member’s request for accounts outstanding for some time, company had opportunity to comply with obligations, and no evidence to explain failure—company not given further period to comply as no reason to believe would do so: In re Canargo Ltd. (Royal Ct.), 2018 GLR N [2]

Administration management order. See FINANCIAL SERVICES (Administration management orders)

Administration orders

burden of proof

applicant for administration order under Companies (Guernsey) Law 2008, s.375 to show company unable to satisfy solvency test under s.527(1), i.e. (i) whether can pay debts when due; and (ii) whether value of assets exceeds liabilities: In re Propinvest Group Ltd. (Royal Ct.), 2011–12 GLR N [19]

confidentiality

application for administration order may be heard in private, court files sealed, title and text anonymised, and administration order not published if disclosure of precarious financial position of company risks company’s operations at the hands of other creditors, potentially causing disruption and distress to those in company’s care—privacy needed as far as necessary if justice frustrated by publicity: In re Esquire Realty Holdings (Royal Ct.), 2014 GLR 77

disputed debts

hearing of application for administration order not appropriate forum to decide disputed debts or quantum of claim, but court may entertain application if dispute neither genuine nor founded on substantial grounds: In re Propinvest Group Ltd. (Royal Ct.), 2011–12 GLR N [19]

factors to be considered

company may be placed in administration if (a) unable to pay debts as they fall due and value of assets less than total of liabilities, thus satisfying solvency test in Companies (Guernsey) Law 2008, s.527; and (b) administration would produce more profitable realization of assets than winding up—discretion to make administration order exercised with regard to interests of stakeholders—proposed arrangement to ensure minimum disruption by ensuring continuity of operations: In re Esquire Realty Holdings (Royal Ct.), 2014 GLR 77

in determining whether to grant administration order under Companies (Guernsey) Law 2008, s.374, court to consider whether company passes solvency test under s.527(1), i.e. (i) can pay debts when due; and (ii) value of assets exceeds liabilities, order enables company to survive as going concern, and order renders more advantageous realization of assets than winding up: In re Propinvest Group Ltd. (Royal Ct.), 2011–12 GLR N [19]

guidance

“SIP 16” reports of great assistance to court and should be produced in pre-pack administration order cases, though not required by statute, unless overwhelming reasons not to: In re Esquire Realty Holdings (Royal Ct.), 2014 GLR 77

legal proceedings

no proceedings by company after application for administration order without permission of Royal Court—company itself remains party to ongoing proceedings with administrator as agent: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

locus standi of applicant

employee making claim in Employment & Discrimination Tribunal is prospective creditor—has standing under Companies (Guernsey) Law 2008, s.375 to petition for administration order: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

under Companies (Guernsey) Law 2008, s.375, application for administration order may be made by contingent creditor—bank which has enforced security may be contingent creditor if value of security worth less than debt, and may therefore have sufficient locus to make application: In re Propinvest Group Ltd. (Royal Ct.), 2011–12 GLR N [19]

naming of company in administration

if placed in administration during proceedings in Employment & Discrimination Tribunal, subsequent proceedings should recognize change—usual to add “(in administration)” after name in all further dealings with Tribunal and Tribunal may do same in official communications: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

position of administrator

agent of company with wide management powers under Companies (Guernsey) Law 2008, s.379(1)—to be named in all applications and correspondence by company—company remains party to ongoing legal proceedings and administrator represents it as agent though not himself party: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

protected cell companies. See Protected cell companies—administration

purpose of administration

purpose to secure survival of company as going concern with better prospect of realizing assets than under ordinary liquidation: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

solvency test. See Administration orders—factors to be considered

Amalgamation

protected cell companies

before Companies (Guernsey) Law 2008 in force, on amalgamation of protected cell company with non-cellular company, if assets of non-cellular company allocated to distinct cell, proper to attribute existing liabilities of non-cellular company to that cell: In re AB Intl. Fund PCC Ltd. (Royal Ct.), 2007–08 GLR 347

before Companies (Guernsey) Law 2008 in force, permissible for protected cell company to amalgamate with non-cellular company if both companies within Amalgamation of Companies Ordinance 1997—proper for non-cellular company to become distinct cell in amalgamated company, with existing assets and liabilities attributed to it: In re AB Intl. Fund PCC Ltd. (Royal Ct.), 2007–08 GLR 347

under Companies (Guernsey) Law 2008, s.61(1), Guernsey protected cell company may only amalgamate with another such company or foreign equivalent—proper for integrity of pre-amalgamation cells to be retained, retaining their separate assets and liabilities in amalgamated company: In re AB Intl. Fund PCC Ltd. (Royal Ct.), 2007–08 GLR 347

Appointment of directors. See Directors—appointment

Arrangements between company and members. See Schemes of arrangement—arrangements between company and members

Articles of association. See Directors—terms of office

Beneficial ownership of shares. See Shareholders—nominee shareholders. Shareholders—transfer of beneficial interest

“Blessing” of liquidator’s decision

application for directions

application for directions under Companies (Guernsey) Law 2008, s.426 to assist liquidators to make liquidation decisions—court not to take over conduct of liquidation: In re CanArgo Ltd. (Royal Ct.), 2020 GLR 264

under Companies (Guernsey) Law 2008, s.426, liquidator may apply for directions in respect of “any matter arising in the winding up of a company”—application for court’s approval of decision to enter into conditional asset purchase agreement within scope of s.426: In re CanArgo Ltd. (Royal Ct.), 2020 GLR 264

Breaches of directors’ duties. See Directors—breaches of duty

Capital assets. See INCOME TAX (Capital assets—acquisition and disposal)

Change of name. See Name of company—change of name

“Clean hands”. See Compulsory winding up—grounds for winding up

Compulsory winding up

affidavits. See Compulsory winding up—composition of court

assets available for distribution

fund ascertainment principle

in insolvent liquidations, creditor not entitled to participate in distribution if also debtor without first contributing to assets for distribution by paying debt—principle applicable in place of set-off if company unable to prove in creditor’s own liquidation because of rule against double proof, e.g. as guarantor, when principal creditors already proved: Flightlease Holdings (Guernsey) Ltd. v. Flightlease (Ireland) Ltd. (Royal Ct.), 2009–10 GLR 38

principle may be excluded by general agreement with creditors—probably not by agreement with individual creditor affecting statutory requirement of pari passu distribution: Flightlease Holdings (Guernsey) Ltd. v. Flightlease (Ireland) Ltd. (Royal Ct.), 2009–10 GLR 38

may allow recognized foreign liquidator to contest interpleader proceedings in Guernsey to ascertain ownership of disputed assets—if establishes owned by foreign company in liquidation, liquidator may then be able to claim them as part of foreign liquidation: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

composition of court

Jurats needed to hear proceedings if disputed questions of fact require decision, e.g. whether company unable to pay debts—may be appropriate to make decision on basis of affidavits from parties, with counsel providing statement of issues for decision: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

discretion of court

establishing ground for winding up under Companies (Guernsey) Law 2008, s.406 only gives court discretion to make order—burden of proof on company to show circumstances justifying exercise of discretion to refuse order: Public Servs. Dept. (Minister) v. Miller & Baird (C.I.) Ltd. (Royal Ct.), 2009–10 GLR 142

dismissal of winding-up application. See Compulsory winding up—stay of winding up

distribution of assets

equitable lien over proceeds of sale of English property as matter of English law not preferential payment under Companies (Guernsey) Law 2008, s.419—lien not security interest as no written security agreement as required by Security Interests (Guernsey) Law 1983, s.1—lien holders rank as unsecured creditors: In re Conqueror Hldgs. Ltd. (Royal Ct.), 2019 GLR 255

withholding of dividend—if creditor and company mutually indebted (with balance in favour of company) and company unable to prove and set off debt in creditor’s own liquidation, application of fund ascertainment principle allows company to recoup part of balance by withholding dividend from creditor: Flightlease Holdings (Guernsey) Ltd. v. Flightlease (Ireland) Ltd. (Royal Ct.), 2009–10 GLR 38

dividend. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

failure to provide accounts. See Compulsory winding up—grounds for winding up

fraudulent dispositions

Pauline action

action creditor can bring to set aside disposition in fraud of creditor—no resulting entitlement to compensation—requirements: (a) person bringing Pauline action must have been creditor at time of transaction; and (b) creditor must show debtor’s insolvency (balance sheet test) at time or as result of transaction—person may be creditor if facts giving rise to claim pre-date transaction, even if creditor status is not established at that time—suffices that intention to defraud was substantial purpose of transaction—possible defences include unjust continuing enrichment and change of position: Flightlease Holdings (Guernsey) Ltd. v. Intl. Lease Finance Corp. (Royal Ct.), 2005–06 GLR N [11]

may be allowed even though creditor has submitted in proofs of debt claims based on facts supporting actions in contract and fraudulent misrepresentation: Flightlease Holdings (Guernsey) Ltd. v. Intl. Lease Finance Corp. (Royal Ct.), 2005–06 GLR N [11]

fund ascertainment principle. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

grounds for winding up

failure to provide accounts

inability to pay debts

company’s appeal against compulsory winding-up order made by Royal Court following company’s failure to pay statutory demand (in respect of €22m. debt found to be due in French proceedings in Tribunal de Commerce de Paris and upheld by Paris Court of Appeal, although further appeal to Cour de Cassation) dismissed: In re JJW Ltd. (C.A.), 2021 GLR 209

decision on liability after full argument following statutory demand for payment makes reconsideration unnecessary at substantive winding-up hearing—justified on broad principle of not wasting time and money in re-trying matters already decided—not necessary to rely on technical doctrines of issue estoppel or res judicata: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

if contract creating debt gives exclusive jurisdiction over disputes to English courts, company not to delay English action in favour of Guernsey proceedings—inappropriate then to stay winding up in Guernsey to await English decision when company has delayed by first raising issues in Guernsey: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

presumption that court will grant application unless company shows (a) genuine and serious cross-claim of substance; (b) company not reasonably able to litigate earlier; and (c) exceeds debt claimed by creditor—court may then refuse to grant application unless creditor shows exceptional circumstances—exceptional circumstances only if company has ceased trading and other creditors and members not prejudiced by refusal: Public Servs. Dept. (Minister) v. Miller & Baird (C.I.) Ltd. (Royal Ct.), 2009–10 GLR 142

just and equitable

equity requires petitioner to come with clean hands—immoral and deliberate conduct required for finding of unclean hands—court to be slow to apply maxim where mistrust and suspicion on both sides and winding up appears to be only solution to company deadlock: Midland Resources Holding Ltd. v. Prodefin Trading Ltd. (C.A.), 2017 GLR 304

“just and equitable”

equity requires petitioner to come with clean hands, i.e. dispute not caused by own bad faith—burden on respondent to prove petitioner’s hands not clean, especially as “la bonne foi est toujours presume” (Loi relative aux Preuves 1865, art. 37): Hubert v. Circuit Skips Ltd. (Royal Ct.), 2000–02 GLR N [6]

ground not applicable to every company—“just and equitable” ground typically (though not exhaustively) applies to companies based on personal relationships of mutual confidence, in which some or all shareholders involved in conduct of business, or where restrictions on ability of members to transfer their shares: Hubert v. Circuit Skips Ltd. (Royal Ct.), 2000–02 GLR N [6]

irretrievable breakdown in relationship between managing director and other shareholders justifies winding up, e.g. other shareholders withhold director’s bonus and attempt to devalue his shareholding when articles of association make it impossible for him to sell shares: Hubert v. Circuit Skips Ltd. (Royal Ct.), 2000–02 GLR N [6]

just and equitable

on liquidators’ application, company in voluntary liquidation placed in compulsory liquidation in unusual circumstances, namely dispute between contributories to joint venture being litigated in England, potential further disagreement as to allocation of shares and one contributory owned by Libyan Investment Authority (subject to EU sanctions)—allows greater court oversight: In re Maplecross Properties Ltd. (Royal Ct.), 2018 GLR 54

“just and equitable”

remedy of last resort requiring strong and reasonable case—burden on petitioner to prove facts alleged: Hubert v. Circuit Skips Ltd. (Royal Ct.), 2000–02 GLR N [6]

role of Guernsey Financial Services Commission in seeking winding up of fiduciary as “just and equitable” under Regulation of Fiduciaries, Administration Businesses and Company Directors, etc. 2000, s.34, to act on behalf of members of company when desirable—court to focus on whether winding up for benefit of members: Guernsey Fin. Servs. Commn. v. Claridges Trustees Ltd. (Royal Ct.), 2007–08 GLR N [19]

protection of public or reputation of Guernsey

compulsory winding up under Companies (Guernsey) Law 1994, s.96B(1) draconian remedy to be used only as last resort—may be used when major efforts unsuccessfully made by Guernsey Financial Services Commission to secure compliance with licensing conditions of fiduciaries: Guernsey Fin. Servs. Commn. v. Claridges Trustees Ltd. (Royal Ct.), 2007–08 GLR N [19]

phrases in Companies (Guernsey) Law 1994, s.96B(1) given ordinary meaning—“public” interpreted widely to include members of public anywhere (not limited to Guernsey), including clients of companies being wound up and those affected by their work, e.g. beneficiaries of trusts: Guernsey Fin. Servs. Commn. v. Claridges Trustees Ltd. (Royal Ct.), 2007–08 GLR N [19]

liquidator. See Liquidators

liquidators. See Liquidators

locus standi of applicant

liquidator of company in voluntary winding up has standing to apply for compulsory winding up under Companies (Guernsey) Law 2008, s.408(1) as company or interested party: In re Maplecross Properties Ltd. (Royal Ct.), 2018 GLR 54

locus standi to make application

burden of proof on applicant for compulsory winding up to show locus standi under Companies (Guernsey) Law 2008, s.408—each basis on which asserts locus standi to be assessed on own merits—speculative allegations that has tracing claim or company knowingly or dishonestly received party’s moneys, and party’s letters to company demanding repayment not sufficient evidence to establish that party is creditor: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

court to adopt English approach when determining whether applicant for compulsory winding up under Companies (Guernsey) Law 2008, s.408 is creditor, i.e. anyone not named as creditor entitled to present application does not become so named because company insolvent: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

“creditor”—in absence of applicable definition of “creditor” in Companies (Guernsey) Law 2008, s.408, word to be given ordinary meaning, i.e. person to whom debt payable—may also encompass future and contingent creditors—party lending to company X which in turn lends his moneys to company Y through partnership is creditor of X, not Y, and party has no locus standi to apply for compulsory winding up of Y on that basis: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

“interested party”—under Companies (Guernsey) Law 2008, s.408, “interested party” is person interested in company in respect of which winding up application pursued, in sense broadly equivalent to, but distinct from, way in which persons named in s.408 (i.e. creditors, members and directors of company) are interested—may include e.g. States departments and parties in contractual relationships with company: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

party lending to company X which in turn lends his moneys through partnership to company Y is creditor of X, not Y, and party has no locus standi to petition for compulsory winding up of Y on that basis under Companies (Guernsey) Law 2008, s.408, but may do so as “interested party” depending on circumstances—“interested party” if beneficial owner of X, could have paid moneys directly to Y but for partnership structure, and Y carries on business as a result of provision of moneys from interested party: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

under Companies (Guernsey) Law 2008, s.408, application for compulsory winding up may be made by creditors, members or directors of company, or any other interested party—application may not be brought by creditor if debt claimed disputed in good faith on real and substantial grounds: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

under Companies (Guernsey) Law 2008, s.408, application for compulsory winding up may be made by creditors, members or directors of company, or any other interested party—whether person is “interested party” depends on appropriate degree of connection or association with company to apply for company’s winding up—applicant bank making payments, on fellow applicant/account holder’s instruction, to company X beneficially owned by co-applicant, which in turn lends moneys to company Y, has too remote a connection with Y to be “interested party”: In re Synergy Capital Ltd. (Royal Ct.), 2011–12 GLR 605

under Companies (Guernsey) Law 2008, s.408(1), company itself, director, member or creditor may make application, after which process supervised by Royal Court: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

naming of company in liquidation

not legally required but usual to add “(in liquidation)” after name in official documents to indicate change in who may act for company: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

proceedings against directors. See Directors

representation of company in liquidation

liquidator (or nominee) primarily entitled to bring or defend legal proceedings for company—director’s powers cease unless specifically continued by court or liquidator—company, not representative, remains party to proceedings—identity of person representing company to be recorded in proceedings, together with name and status of person giving instructions: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

role of GFSC

in exercising supervisory and protective functions, GFSC may apply to be heard in winding-up proceedings without being joined as party—joinder may be required if wishes actively to oppose substantive proceedings—may be unnecessary for GFSC to be heard at all, e.g. if proceedings relate to dissolved company or financial services industry’s strong safeguards offer sufficient protection: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

under Companies (Guernsey) Law 2008, s.410, GFSC may apply for winding up of company to protect public and Island’s reputation—since no other provisions in 2008 Law for GFSC to intervene in winding up, legislature deemed not to have contemplated its other involvement in winding up: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

under Financial Services Commission (Bailiwick of Guernsey) Law 1987, s.2, general role of GFSC to supervise financial services industry and protect reputation—s.2 provides no basis for permitting GFSC to be heard in relation to application under Companies (Guernsey) Law 2008, s.426 for discharge and release of liquidator of company already declared dissolved, since dissolved company cannot undertake business: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

under Regulation of Fiduciaries, Administration Businesses and Company Directors, etc. Law 2000, s.34, GFSC may apply for winding up of fiduciaries and companies in certain circumstances and may be heard in court—s.34 cannot be used by analogy to permit GFSC to be heard in respect of liquidator’s discharge and release following dissolution of company, since latter not a winding up application: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

stay of winding up

dismissal usual practice if court persuaded not to order winding up—stay may be appropriate alternative if court doubts commitment of parties to rapid resolution of alternative settlement, e.g. arbitration—creditor may then reactivate winding up with minimum additional evidence: Public Servs. Dept. (Minister) v. Miller & Baird (C.I.) Ltd. (Royal Ct.), 2009–10 GLR 142

inability to pay debts—if contract creating debt gives exclusive jurisdiction over disputes to English courts, company’s delay in starting English proceedings may make inappropriate to stay winding up in Guernsey to await English decision—especially true when delayed further by first raising same issues in Guernsey: Ladbrokes PLC v. Galaxy Intl. Ltd. (Royal Ct.), 2007–08 GLR 101

withholding of dividend. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

Conflict of laws. See CONFLICT OF LAWS (Companies), (Recognition of foreign proceedings—appointment of receiver)

Costs. See Schemes of arrangement—sanction by court

Cross-border insolvency. See Liquidators—recognition of foreign liquidators

Derivative action

general principles

derivative and double derivative actions to be entertained in Guernsey to ensure action can be brought on company’s behalf against wrongdoers in control—plaintiff to show common law exception to Foss v. Harbottle (i.e. company is proper plaintiff for wrong)—“fraud on minority” exception requires (i) wrong or breach of duty by director(s); (ii) wrong incapable of ratification by simple majority (e.g. due to fraud); and (iii) wrongdoer(s) in control of company—director’s negligence not sufficient to give rise to action—Companies Act 2006, ss. 260–264 not part of Guernsey law: Jackson v. Dear (Royal Ct.), 2013 GLR 167

reflective loss

action by beneficial owner of shares against company’s director and investment adviser for reduction in value of shares not struck out before trial: Lucille Holdings PTE Ltd. v. HSBC Management (Guernsey) Ltd. (Royal Ct.), 2024 GLR 96

extent of principle in Guernsey uncertain—applicable only if underlying justifications of principle apply in specific circumstances of case—unlikely to apply if shareholder’s claim against defendant distinct from company’s, alternative remedy practically unavailable, or uncertain whether company would have claim against particular defendant—principle not to apply simply because alternative remedy no longer available due to plaintiff’s failure to act timeously: Jefcoate v. Spread Trustee Co. Ltd. (Royal Ct.), 2014 GLR N [10]

not applicable to claims made by beneficiaries of trust—beneficiary’s claim against trustee substantively different from company’s claim, even if trustee de facto controls company: Jefcoate v. Spread Trustee Co. Ltd. (Royal Ct.), 2014 GLR N [10]

prevents shareholder with recognized good claim making direct recovery from defendant if merely reflection of company’s loss—primary purpose to prevent double recovery from defendant—subject to principle that exclusionary rule applied cautiously: Jefcoate v. Spread Trustee Co. Ltd. (Royal Ct.), 2014 GLR N [10]

principle applies in Guernsey barring claim by shareholder to recover diminution in value of shareholding or distributions if not separate and distinct from company’s loss, for which company has cause of action—does not apply to claim by trustee seeking reconstitution of trust fund—possibility of double recovery managed by case management decisions: Pilatus (PTC) Ltd. v. RBC Trustees (Guernsey) Ltd. (Royal Ct.), 2021 GLR 153

principle operates only where third party wrongdoer against whom shareholder and company have concurrent claims is the same person: Pilatus (PTC) Ltd. v. RBC Trustees (Guernsey) Ltd. (Royal Ct.), 2021 GLR 153

striking out

to avoid striking out, plaintiff to show prima facie case for alleged wrong and requirement for derivative action (i.e. exception to Foss v. Harbottle)—stricter test than for normal application due to scope for abuse of derivative action—plaintiff to show case not spurious or speculative, is serious, bona fide on reasonable grounds, in interests of company and sufficiently strong to continue—if not seeking rescission, plaintiff to plead loss to establish case: Jackson v. Dear (Royal Ct.), 2013 GLR 167

Désastre

naming of company en désastre

identity of company declared en désastre during proceedings remains unchanged—continues to use company name but useful to add “(en désastre)” as warning that insolvent and any judgment obtained against it enforceable only through désastre procedures—because company insolvent, may proceed through further stages of administration and/or liquidation, with consequent evolution of naming: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

powers of H.M. Sheriff

customary powers in désastre (i.e. corporate insolvency) not to be extended to personal insolvency—no inherent jurisdiction of Royal Court to make extension by analogy: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

representation of company en désastre

directors remain responsible for management of company and may represent it (or nominate someone else) in legal proceedings—company’s legal status as party to legal proceedings continues even if name modified: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

Directors

appointment

fiduciary duties. See Directors—fiduciary duties

to ensure appearance of impartiality, when restraining shareholders from convening meeting to remove directors court may require appointment of further directors: Reid v. European Internet Capital Ltd. (C.A.), 2000–02 GLR 327

breach of fiduciary duty

claim by beneficial owner of shares against company director in relation to reduction in value of shares struck out—director owes fiduciary duties to company—plaintiff failed to show relationship of trust and confidence giving rise to fiduciary duties: Lucille Holdings PTE Ltd. v. HSBC Management (Guernsey) Ltd. (Royal Ct.), 2024 GLR 96

breaches of duty

culpability of purported breach to be considered from director’s actual point of view, not of objectively reasonable director—court not to substitute own view for that of director acting reasonably: Jackson v. Dear (Royal Ct.), 2013 GLR 167

failure by directors to sell residential mortgage backed securities at “repo” prices in order to increase liquidity during 2007–08 financial crisis not breach of duty—reasonable to adopt capital preservation strategy—company could not have avoided consequences of crisis: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2019 GLR 159

under Companies (Guernsey) Law 1994, ss. 67A–67D, liquidators entitled to make claims against directors for breaches of duty, wrongful trading, etc.—liquidators’ entitlement to pursue recompense against directors under s.106 not denied by existence of common law liability, since statutory proceedings enable detailed, impartial investigation in public interest and remedy at court’s discretion: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

disclosure of conflict of interest

“immediate” disclosure in Companies (Guernsey) Law, s.162 to have common sense interpretation—satisfied by disclosure when transaction first announced and at meeting at which vote held: Jackson v. Dear (Royal Ct.), 2013 GLR 167

disqualification

13-year disqualification period from range of 10–15 years appropriate if particularly serious and blatant criminal conduct in face of police warnings, but limited mitigation and not quite so serious as to warrant maximum 15 years—maximum period warranted, e.g. if perpetrator of fraud also acts in cavalier criminal manner despite warnings not to do so: Guernsey Fin. Servs. Commn. v. Taylor (Royal Ct.), 2011–12 GLR N [20]

disqualification as director under Companies (Guernsey) Law 1994, s.67A on ground of money laundering extremely serious and long period of disqualification warranted—blatant criminal conduct in face of police warnings in most serious category warranting 10–15 year disqualification: Guernsey Fin. Servs. Commn. v. Taylor (Royal Ct.), 2011–12 GLR N [20]

factors to be considered

court not to draw comparisons between director’s prison sentence for money laundering and appropriate length of associated disqualification order under Companies (Guernsey) Law 1994, s.67A, since factors to be considered for disqualification order substantially different from criminal case: Guernsey Fin. Servs. Commn. v. Taylor (Royal Ct.), 2011–12 GLR N [20]

in absence of principles laid down by Guernsey courts, may consider English guidance, but to bear in mind that order should reflect gravity of offence and Guernsey-specific public interest in maintaining reputation as properly regulated international centre for financial services, and need for deterrent element: Guernsey Fin. Servs. Commn. v. Taylor (Royal Ct.), 2011–12 GLR N [20]

mitigation—director’s age may provide limited mitigation in determining period of disqualification: Guernsey Fin. Servs. Commn. v. Taylor (Royal Ct.), 2011–12 GLR N [20]

exclusion of liability

exclusive jurisdiction clause in favour of foreign jurisdiction circumventing liability under Companies (Guernsey) Law 1994 may be void—s.67F avoids any contract term purporting to exclude director’s liability under 1994 Law, including for offences under ss. 67A–67D and damages under s.106: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

indemnity. See Directors—indemnity against liability

invalidation of exclusion of liability clause by Companies (Guernsey) Law 2008, s.157 not to impose liability retroactively to date when clause valid: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

fiduciary duties

directors owe fiduciary duty to company, not to beneficiaries of trust—beneficiaries cannot bring action against directors for breach of trust committed by trust company: Rowe v. Cross (C.A.), 1997–99 GLR 154

fiduciary duty to act fairly towards shareholders—not necessarily breach of duty to finance litigation between shareholders (e.g. to determine validity of shares) with company funds if litigation has significant impact on voting powers and enables Guernsey litigation to alter shareholders’ register, but to act merely as neutral plaintiff—more active participation warrants cogent justification: Reid v. European Internet Capital Ltd. (C.A.), 2000–02 GLR 327

indemnity against liability

for purposes of Companies (Transitional Provisions) Regulations 2008, reg. 10, article indemnifying directors against liability “provided” to director when appointed, not when articles adopted—director appointed after coming into force of Companies (Guernsey) Law 2008 only eligible for protection under s.522: Perpetual Media Capital Ltd. v. Enevoldsen (C.A.), 2014 GLR 57

for purposes of Companies (Transitional Provisions) Regulations 2008, reg. 10, article indemnifying directors against liability “provided” when articles of association adopted not when director appointed—for transitional period, director may rely on indemnity article “provided” before Companies (Guernsey) Law 2008 in force, even if director appointed after this time—may rely on indemnity for acts occurring during transitional period even if claim brought later: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

provision in company’s articles of association indemnifying directors against all liabilities unless wilful default (i.e. knowing or recklessly careless breach of duty)—presumption that directors take office on terms in company’s articles—rebutted by evidence to contrary, e.g. specific employment contract: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2019 GLR 159

unless invalidated by Companies (Guernsey) Law 2008, s.157, director may rely on indemnity clause for breach of duty even if claim brought by company itself: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

liability

to establish directors’ liability under Trusts (Guernsey) Law 1989, s.70, plaintiff to establish (a) breach of trust by corporate trustee; (b) proposed guarantor was director at time of breach; and (c) damages or costs awarded against trust company—directors proper parties to be joined to action against trust company: Rowe v. Cross (C.A.), 1997–99 GLR 154

management and representation of company

directors remain responsible for management of company going into administration until Royal Court makes administration order and may only appear for company if authorized by administrator—management powers cease on court granting application for compulsory liquidation, unless continued by court or liquidator, or in voluntary liquidation unless authorized by company resolution or liquidator: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

removal

court may exceptionally grant interim injunction restraining shareholders from removing directors, e.g. if disputed shares relied on for right to call meeting, serious disruption caused if shares then declared invalid and damages insufficient remedy, and on balance of convenience injunction better than considerable uncertainty whilst validity of shares determined in foreign jurisdiction: Reid v. European Internet Capital Ltd. (C.A.), 2000–02 GLR 327

court reluctant to remove director for commercial reasons but may do so to resolve stalemate—if agreement resulting in original appointment legitimately reached, court unwilling to exercise greater control over him by mandatory injunction after removal: Technocom Ltd. v. Roscomm Ltd. (Royal Ct.), 2003–04 GLR 403

director may be removed from office if deemed unfit—unfitness of character to be assessed by reference to individual’s probity, competence, solvency, soundness of judgment, diligence, and previous conduct: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

if articles of association provide that company director shall resign if requested to do so by “all his co-directors,” where company has only 2 directors, 1 director cannot remove other (“all” means more than 1)—alternative construction contrary to commercial common sense: Midland Resources Holding Ltd. v. Prodefin Trading Ltd. (C.A.), 2017 GLR 304

terms of office

articles of association act as open offer by company to potential directors—presumption that director takes office on terms of articles even if not expressly stipulated—may be rebutted if director has total lack of experience or knowledge—threshold for incorporating articles as implied term very low: Perpetual Media Capital Ltd. v. Enevoldsen (C.A.), 2014 GLR 57

articles of association act as open offer by company to potential directors—when prospective directors know terms of articles of association, properly inferred that take office based on them, even if not expressly stipulated—although directors not privy as such to articles of association, articles act as implied terms of contract between company and directors: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

wrongful trading

under Companies (Guernsey) Law 1994, s.67C, directors may be liable for wrongful trading—since developing area of law, inappropriate to assess likelihood of claim’s success on hypothetical, not established facts: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

under Companies (Guernsey) Law 1994, ss. 67A–67D, liquidators entitled to make claims against directors for breaches of duty, wrongful trading, etc.—even though liability also at common law, liquidators entitled to pursue recompense against directors under s.106, since statutory proceedings enable detailed, impartial investigation in public interest and remedy at court’s discretion: Carlyle Capital Corp. Ltd. v. Conway (C.A.), 2011–12 GLR 562

Disputed debts. See Administration orders—disputed debts

Distribution of assets. See Compulsory winding up—distribution of assets

certificate of solvency

contingent liabilities relevant to question whether company satisfies solvency test: JJW Hotels & Resort Hldgs. Inc. v. Rhodes (C.A.), 2022 GLR 538

defendants granted summary judgment that declaration of trust unlawful and void under Companies (Guernsey) Law 2008, ss. 301–305—declaration of trust was “distribution” of company assets under s.301—no certificate of solvency, as required by s.303: JJW Hotels & Resorts Holding Inc. v. Rhodes (Royal Ct.), 2022 GLR 189

defendants granted summary judgment that declaration of trust unlawful and void under Companies (Guernsey) Law 2008, ss. 301–305—declaration of trust was “distribution” of company assets under s.301—no certificate of solvency, as required by s.303—appeal dismissed: JJW Hotels & Resort Hldgs. Inc. v. Rhodes (C.A.), 2022 GLR 538

financial statement prepared at later date by independent auditors is not acceptable substitute for solvency certificate required by Companies (Guernsey) Law 2008, s.303: JJW Hotels & Resort Hldgs. Inc. v. Rhodes (C.A.), 2022 GLR 538

definition of “distribution”

“distribution” in Companies (Guernsey) Law 2008, s.301 broadly defined—applies to direct or indirect transfer of any property other than company’s own shares, to or for benefit of member, by any means—no exception for intra-group transfers: JJW Hotels & Resort Hldgs. Inc. v. Rhodes (C.A.), 2022 GLR 538

Exclusion of directors’ liability. See Directors—exclusion of liability

Extraordinary General Meetings. See Meetings—Extraordinary General Meeting

Failure to provide accounts. See Compulsory winding up—grounds for winding up

Fee cap. See Liquidators—remuneration

Fiduciary duties. See Directors—fiduciary duties

Fiduciary duties of directors. See Directors—fiduciary duties

Fiduciary duty. See Directors—breach of fiduciary duty

Fiduciary service providers. See Compulsory winding up—grounds for winding up. FINANCIAL SERVICES (Regulation of fiduciaries)

Foreign-appointed receiver. See CONFLICT OF LAWS (Recognition of foreign proceedings—appointment of receiver)

Foreign companies

migration of foreign company. See Protected cell companies—migration of foreign company

naming conventions

conventions for naming foreign companies may be similar to Guernsey conventions but Tribunal to ask foreign company’s representatives for details applicable in place of incorporation: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

Fund ascertainment principle. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

Grounds for winding up. See Compulsory winding up—grounds for winding up

Inability to pay debts. See Compulsory winding up—grounds for winding up

Indemnity. See Directors—indemnity against liability

Investment adviser

breach of duty of care

claim by beneficial owner of shares against company’s investment adviser in relation to reduction in value of shares not struck out before trial—in cases of pure economic loss, duty of care arises where party assumed responsibility to use reasonable care to avoid harm—evidence that investment adviser actively engaged with plaintiff and encouraged investment: Lucille Holdings PTE Ltd. v. HSBC Management (Guernsey) Ltd. (Royal Ct.), 2024 GLR 96

breach of fiduciary duty

claim by beneficial owner of shares against company’s investment adviser in relation to reduction in value of shares not struck out: Lucille Holdings PTE Ltd. v. HSBC Management (Guernsey) Ltd. (Royal Ct.), 2024 GLR 96

“Just and equitable”. See Compulsory winding up—grounds for winding up

Legal proceedings

action in respect of corporate wrong. See Derivative action

application for sanction of scheme of arrangement. See Schemes of arrangement—sanction by court

costs. See Schemes of arrangement—sanction by court

funding legal proceedings. See Directors—fiduciary duties

Liabilities of directors. See Directors—liability. TRUSTS (Trust companies—liability of directors)

Liability of directors. See Directors—exclusion of liability

Liquidation. See Compulsory winding up. Voluntary winding up

Liquidators

application for directions

“blessing” of liquidator’s decision

in principle, liquidators to take account of potentially relevant legal advice—court can “bless” decision taken without potentially relevant legal advice if liquidators did not have funds to obtain advice: In re CanArgo Ltd. (Royal Ct.), 2020 GLR 264

liquidators applying for court’s approval of decision to enter into conditional asset purchase agreement in effect asking court to “bless” decision, by analogy with trust cases under second category in Public Trustee v. Cooper—must be proper and particular reason for invoking court’s jurisdiction, e.g. contentious decision to sell company assets which might lead to litigation: In re CanArgo Ltd. (Royal Ct.), 2020 GLR 264

liquidators’ decision to enter into conditional purchase agreement approved—all relevant factors considered, decision not irrational or Wednesbury unreasonable—views of majority creditor considered but not followed: In re CanArgo Ltd. (Royal Ct.), 2020 GLR 264

discharge and release. See Liquidators—discharge and release

on ex parte application by liquidators for approval of professional fees and expenses, court to consider application critically in interests of creditors: In re Company X (Royal Ct.), 2020 GLR N [1]

under Companies (Guernsey) Law 2008, s.426, liquidator may make application for directions in respect of “any matter arising in the winding up of a company”—wording of s.426 to be given natural meaning—enables liquidator to seek assistance with matters arising in course of winding up, i.e. action still in future at time of application—s.426 may not be relied on to obtain discharge and release of sole liquidator following dissolution of company: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

discharge and release

role of Guernsey Financial Services Commission. See Compulsory winding up—role of GFSC

under Companies (Guernsey) Law 2008, s.426, liquidator may make application for directions in respect of “any matter arising in the winding up of a company”—joint liquidator may apply under s.426 for discharge and release following resignation or retirement, with sole liquidator remaining in office, since in the course of winding up—sole liquidator may not apply under s.426 for discharge and release following dissolution of company, since not in course of winding up: In re Kingston Mgmt. (Guernsey) Ltd. (Royal Ct.), 2011–12 GLR 670

duties

duties in voluntary liquidation to wind up company’s affairs and may appear for company in legal proceedings, or authorize director or other person to represent company—in compulsory liquidation, appointed by Royal Court, which has overall supervision, including review of liquidator’s final accounts by Commissioner of Royal Court: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

recognition of foreign liquidators

recognition creates duty on Guernsey court to give active assistance—discretion as to form of assistance—may allow liquidator to contest interpleader proceedings in Guernsey to decide ownership of disputed assets, as preliminary to claiming assets to which company in liquidation entitled: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

remuneration

fee cap

information to be provided by liquidators on application for increase in fees: In re Eagle Holdings Ltd. (Royal Ct.), 2017 GLR N [12]

intended to impose financial discipline—may be revised if unforeseeable events render initial cap insufficient: In re DM Property Holdings (Guernsey) Ltd. (Royal Ct.), 2017 GLR N [1]

Locus standi to apply for compulsory winding up. See Compulsory winding up—locus standi to make application

Locus standi to claim relief. See Unfair prejudice to members—locus standi to claim relief

Managers

definition

“manager” is person or entity holding de jure or de facto position of managing company’s affairs even if no formal assignment of role: Perpetual Media Capital Ltd. v. Enevoldsen (Royal Ct.), 2013 GLR 310

Meetings

convening meeting. See Shareholders—right to convene meeting

Extraordinary General Meeting

not enough that formalities of calling meeting complied with, e.g. properly convened and matching proposed and passed resolutions—court to decide whether in all circumstances business of meeting in interests of company as a whole: International Steel & Tube Indus. Ltd. v. Masood (Royal Ct.), 2005–06 GLR N [13]

Mergers. See Amalgamation

Name of company

change of name

name remains unchanged until removed from Register unless changed under procedure in Companies (Guernsey) Law 2008, Part III—if name changed in course of legal proceedings, proceedings continue and judgment given in new name—in legal proceedings, may wish to add former name in parentheses for clarity: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

under Companies (Guernsey) Law 1994, s.22, company may change name by special resolution with court order confirming change—order invalid if court unaware at time it considers application that special resolution invalidly passed, but has discretion to confirm further, validly passed special resolution that effective date of name change same as in previous, invalid order if appropriate in circumstances, e.g. if formalities complied with and would prevent confusion by third parties dealing with company: In re Tetragon Credit Income Fund Ltd. (Royal Ct.), 2005–06 GLR N [23]

naming conventions. See Administration orders—naming of company in administration. Compulsory winding up—naming of company in liquidation. Foreign companies—naming conventions. Voluntary winding up—naming of company in liquidation

Nominee shareholders. See Shareholders—nominee shareholders

Own-share purchases. See Schemes of arrangement—own-share purchases

Pre-pack administrations. See BANKRUPTCY AND INSOLVENCY (Pre-pack administrations)

Protected cell companies

administration

court to ensure administrators can undertake duties without unreasonable fetter—may discharge freezing order if unnecessarily hinders payment of administration expenses, including cost of legal advice—creditors’ claims may be subordinated to expenses of administration: Messenger Ins. PCC Ltd. v. Cable & Wireless PLC (Royal Ct.), 2005–06 GLR 206

expenses

if assets of cell not sufficient to pay cell’s administration expenses and no outside funding available, court to look first to assets of core, and, if those not sufficient, to assets of other cells: Messenger Ins. PCC Ltd. v. Cable & Wireless PLC (Royal Ct.), 2005–06 GLR 206

if assets of core not sufficient to pay core’s administration expenses and no outside funding available, court may charge expenses to cells with sufficient assets: Messenger Ins. PCC Ltd. v. Cable & Wireless PLC (Royal Ct.), 2005–06 GLR 206

amalgamation

migration of foreign company

under Protected Cell Companies Ordinance 1997, s.8 and Migration of Companies Ordinance 1997, s.5, Guernsey Financial Services Commission may consent in advance to conversion of foreign company to Guernsey protected cell company once migrates to Guernsey—appropriate for foreign company complying with foreign legislation similar to Protected Cell Companies Ordinance—after consent, may apply for registration as Guernsey protected cell company: In re Jubilee Absolute Return Fund PCC Ltd. (Royal Ct.), 2005–06 GLR N [14]

Provisional liquidation. See Unfair prejudice to members—alternative relief

Reception of English law

English origins of Guernsey company law

desirable for Guernsey company and commercial law to develop in accordance with principles from English and other common law jurisdictions, since have greater experience of relatively complex disputes—Royal Court’s discretion to give active assistance to recognized foreign liquidators explained and developed: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2013 GLR 354

only English common law exceptions to Foss v. Harbottle applicable in Guernsey—under “aids to navigation,” new English statutory scheme (Companies Act 2006, ss. 260–264) not applied by judicial law-making in Guernsey because (i) so complicated as to require legislative enactment; and (ii) States knew of English scheme when enacting new legislation in Guernsey and neglected to introduce it: Jackson v. Dear (Royal Ct.), 2013 GLR 167

since originally based on English legislation, English principles (rather than doctrines developed under civil law based systems, e.g. Scotland) adopted to supplement customary law or statute in suitable cases where compatible with Guernsey principles—fund ascertainment principle applicable in Guernsey as helpful to fair distribution of property on insolvent liquidation: Flightlease Holdings (Guernsey) Ltd. v. Flightlease (Ireland) Ltd. (Royal Ct.), 2009–10 GLR 38

Recognition of foreign liquidators. See Liquidators—recognition of foreign liquidators

Rectification of register of shareholders. See Register of shareholders—rectification

Reflective loss. See Derivative action—reflective loss

rectification

court may order retrospective rectification of register—injustice not to be caused to third parties: Harlequin Chemicals Ltd. v. Urban (Royal Ct.), 2016 GLR N [1]

Removal of director. See Directors—removal

Removal of directors. See Directors—removal

Remuneration. See Liquidators—remuneration

Role of Guernsey Financial Services Commission. See Compulsory winding up—role of GFSC

Schemes of arrangement

arrangements between company and members

proposed arrangement for third party to purchase all of company’s shares from members is arrangement between company and members under Companies (Guernsey) Law 2008, s.105, even though company would merely register transfer of shares—previous Guernsey authority that such schemes may be authorized and implemented under Law: In re Industrials REIT Ltd. (Royal Ct.), 2023 GLR 140

distribution of assets

approved scheme may provide for distribution of company’s assets to creditors first before transfer of balance to members, if facilitates desirable exit route not involving either more expensive voluntary arrangement or compulsory liquidation: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345

own-share purchases

Royal Court’s refusal to sanction proposed scheme for compulsory purchase by company of all minority shares (in effect, takeover by majority shareholders) not unreasonable exercise of discretion under Companies (Guernsey) Law 2008, s.110 if, inter alia, offer price unfairly low and implied threat of no future distributions: Puma Brandenburg Ltd. v. Aralon Res. Inv. Co. Ltd. (C.A.), 2017 GLR 127

under Companies (Guernsey) Law 2008, s.313(3), company to obtain consent of all selling shareholders to proposed own-share purchase before scheme can be approved by court: Puma Brandenburg Ltd. v. Aralon Res. & Inv. Co. Ltd. (C.A.), 2017 GLR 127

reconstruction

“reconstruction” within Companies (Guernsey) Law 2008, s.111(1)(a) means business not terminated or sold but carried on in altered but substantially same form by same investors as before—not necessary that all assets pass or that all shareholders remain same: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345

reliance on English authorities

English decisions in insolvency matters of assistance in Guernsey (especially if legislation identical) but not binding—Guernsey statutory regime less prescriptive than English, giving court greater scope and flexibility: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345

sanction by court

costs of appeal—company ordered to pay objecting shareholders’ costs on indemnity basis of company’s unsuccessful appeal against Royal Court’s refusal to sanction proposed scheme for compulsory purchase by it of all minority shares—distinction between ordinary adversarial litigation and application for court’s sanction of proposed scheme of arrangement—similar to non-adversarial trust litigation: Puma Brandenburg Ltd. v. Aralon Res. & Inv. Co. Ltd. (C.A.), 2017 GLR 173

costs of objecting shareholders—generally paid by company, provided grounds of objection reasonable and worthy of proper consideration: In re Puma Brandenburg Ltd. (Royal Ct.), 2017 GLR N [9]

court may sanction scheme if satisfied (a) shareholders or creditors fairly represented at meeting and majority acting bona fide and not coercing minority; (b) intelligent and honest member of class concerned acting in own interest might reasonably approve scheme; and (c) no blot on scheme suggesting should not be sanctioned: Puma Brandenburg Ltd. v. Aralon Res. & Inv. Co. Ltd. (C.A.), 2017 GLR 127

expedited appeal—application for expedited hearing of company’s appeal against Royal Court’s refusal to sanction scheme of arrangement dismissed as no objective urgency (currency fluctuations between sterling and euro likely to continue): Puma Brandenburg Ltd. v. Aralon Res. & Inv. Co. Ltd. (C.A.), 2017 GLR N [4]

if scheme involves simple takeover, relevant to court’s exercise of discretion to sanction scheme that scheme opposed by holders of sufficient shares that 90% threshold for compulsory acquisition in takeover could not have been achieved—court to consider carefully fairness of scheme: Puma Brandenburg Ltd. v. Aralon Res. & Inv. Co. Ltd. (C.A.), 2017 GLR 127

principles guiding exercise of court’s discretion to sanction scheme under Companies (Guernsey) Law 2008, s.110: In re Montenegro Invs. Ltd. (Royal Ct.), 2013 GLR 345

Shareholders

beneficial ownership

transfer. See Shareholders—transfer of beneficial interest

liability to income tax. See INCOME TAX (Income or capital—shares)

litigation between groups of shareholders. See Directors—fiduciary duties

nominee shareholders

if nominee registered shareholder, beneficial owner not “member of company” within Companies (Guernsey) Law 2008, s.121—unregistered beneficial owner no standing to claim relief under s.349 for unfair prejudice: Synergy Classic Ltd. v. D.E.S. Comm. Holdings Ltd. (Royal Ct.), 2011–12 GLR N [17]

reflective loss. See Derivative action—reflective loss

right to convene meeting

agent may requisition meeting on shareholders’ behalf provided shareholders recognized as competent to do so by company and all consent—if consent not properly obtained by requisitioning instruments, subsequent ratification not possible, but oral consent prima facie suggests consent obtained and meeting may validly be held: Reid v. European Internet Capital Ltd. (C.A.), 2000–02 GLR 327

to be exercised bona fide—not bona fide if object different from merely passing resolutions in notice, e.g. personal advantage to shareholder or retaliation: International Steel & Tube Indus. Ltd. v. Masood (Royal Ct.), 2005–06 GLR N [13]

under Companies (Guernsey) Law 1994, s.70(2), members requisitioning meeting to hold at least one-tenth of issued shares—if validity of some of necessary shares disputed, court may grant interim injunction restraining meeting from being held until further court order, e.g. after validity determined: Reid v. European Internet Capital Ltd. (C.A.), 2000–02 GLR 327

transfer of beneficial interest

may be transferred by (i) declaring sub-trust of beneficial interest, (ii) legal assignment; (iii) legal assignment to trustee for transferee; or (iv) simple direction to trustee—for legal assignment, notice in writing may suffice, but wording to suggest direct transfer, not e.g. instruction to trustee to effect transfer: Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

transfer of beneficial interest in shares may be effected by beneficial owner’s giving notice in writing to trustee—may be deemed properly served if, in accordance with company management agreement, delivered to offices of trustee company: Hitchins v. Hill (Royal Ct.), 2011–12 GLR 336

unfair prejudice. See Unfair prejudice to members

beneficial ownership. See Shareholders—nominee shareholders

borrowers who transferred ownership of realty (which was to provide security for loan) to company (at gross undervalue) as part of complicated loan arrangements were beneficial owners of shares in company—directors not entitled to bring proceedings against borrowers to assist lender to whom directors owed no duties—lender had no security interest over shares: Gaudion v. Weardale Ltd. (C.A.), 1997–99 GLR 79

issue of shares

no civil remedy available for breach of Companies (Guernsey) Law, s.298: Jackson v. Dear (Royal Ct.), 2013 GLR 167

own-share purchases. See Schemes of arrangement—own-share purchases

transfer of shares

court has power pursuant to Court of Appeal (Guernsey) Law 1961, ss. 14 and 17 and Court of Appeal (Civil Division) (Guernsey) Rules 1964, r.12 to lift Mareva order over shares and order transfer of shares to other party where appropriate in circumstances—jurisdiction not limited to discharge of order: Hulme v. Matheson Secs. (Channel Islands) Ltd. (C.A.), 1997–99 GLR 65

Special resolutions

delivery to Greffier

compliance with 15-day delivery requirement under Companies (Guernsey) Law 1994, s.73(2) if credible evidence of proper posting within time limit—presumption in Interpretation (Guernsey) Law 1948, s.11 that delivered “in ordinary course of post” extended and by Companies Law, s.116(4) deemed received by Greffier on third day after posting: In re Westbury Property Fund Ltd. (Royal Ct.), 2005–06 GLR 176

Stay of winding up. See Compulsory winding up—stay of winding up

Takeovers

scheme of arrangement. See Schemes of arrangement—sanction by court

Transfer of shares. See Shares—transfer of shares

proper law of transfer. See CONFLICT OF LAWS (Companies—share transfer)

transfer of beneficial interest. See Shareholders—transfer of beneficial interest

Unfair prejudice to members

alternative relief

on application for discretionary relief, court to consider whether relief may be framed more appropriately, and may implement creative solution—parties, not court, to identify possible forms of relief—on application for orders under Companies (Guernsey) Law 2008, s.350 (requiring company to continue certain litigation or for purchase of shares) or any other relief, not error of law for Royal Court to dismiss application without considering ordering provisional liquidation: Midland Resources Holding Ltd. v. Prodefin Trading Ltd. (C.A.), 2017 GLR 304

locus standi to claim relief

under Companies (Guernsey) Law 2008, s.349, only members of company, including persons to whom shares transferred by operation of law, have locus standi—standing requires registration and unregistered beneficial owner has no standing: Synergy Classic Ltd. v. D.E.S. Comm. Holdings Ltd. (Royal Ct.), 2011–12 GLR N [17]

Venture capital funding

liability to income tax. See INCOME TAX (Income or capital—shares)

Voluntary winding up

assets available for distribution

fund ascertainment principle

principle may be excluded by general agreement with creditors but probably not by agreement with individual creditor affecting statutory requirement of pari passu distribution: Flightlease Holdings (Guernsey) Ltd. v. Flightlease (Ireland) Ltd. (Royal Ct.), 2009–10 GLR 38

distribution of assets

dividend. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

fraudulent dispositions

Pauline action

fund ascertainment principle. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

liquidators. See Liquidators

naming of company in liquidation

not legally required but usual to add “(in voluntary liquidation)” after name to indicate change in who may act for company: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

representation of company in liquidation

in proceedings in Employment & Discrimination Tribunal, Tribunal should check identity of person authorized to represent company in liquidation—liquidator (or nominee) primarily entitled to appear—director may not appear unless specifically authorized by company resolution or by liquidator—company, not representative, remains party to proceedings: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

status of company

remains in existence until dissolved but must stop trading (except as necessary for carrying out liquidation) when passes resolution to begin liquidation—company’s legal status as party to legal proceedings continues even though name modified: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

withholding of dividend. See Compulsory winding up—assets available for distribution. Voluntary winding up—assets available for distribution

Winding up. See Compulsory winding up. Voluntary winding up

Wrongful trading. See Directors—wrongful trading