The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion
The judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1...
| Main Authors: | , |
|---|---|
| Format: | Article |
| Language: | Afrikaans |
| Published: |
North-West University
2021-03-01
|
| Series: | Potchefstroom Electronic Law Journal |
| Subjects: | |
| Online Access: | https://journals.assaf.org.za/index.php/per/article/view/8824 |
| _version_ | 1818871997327736832 |
|---|---|
| author | Friedrich Hamadziripi Patrick C Osode |
| author_facet | Friedrich Hamadziripi Patrick C Osode |
| author_sort | Friedrich Hamadziripi |
| collection | DOAJ |
| description | The judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1843) 67 ER 189. However, after realising intolerable deficiencies in the common law, the United Kingdom Law Commission (the Law Commission) recommended that there should be a new derivative procedure that met modern demands. This resulted in a statutory derivative remedy which can be activated in terms of Chapter 1 of Part 11 of the UK Companies Act, 2006. The effectiveness of legislative regulatory devices generally, and commercial law-related ones in particular, may to a greater extent depend on judicial interpretation and application. A conservative and literal interpretive approach that is purpose-neutral will significantly undermine the prospect of the current derivative remedy regime’s achieving the intended policy objectives. To that end, this contribution examines several court decisions handed down after the enactment of the 2006 Act and spanning over a period of approximately ten years. Ultimately, it will be considered whether the leave requirement in English derivative litigation is proving to be an invaluable and indispensable procedural prerequisite or an implausible barrier to honest litigants. |
| first_indexed | 2024-12-19T12:31:48Z |
| format | Article |
| id | doaj.art-4ebcfe0e75884fafa2436e4a980393ff |
| institution | Directory Open Access Journal |
| issn | 1727-3781 |
| language | Afrikaans |
| last_indexed | 2024-12-19T12:31:48Z |
| publishDate | 2021-03-01 |
| publisher | North-West University |
| record_format | Article |
| series | Potchefstroom Electronic Law Journal |
| spelling | doaj.art-4ebcfe0e75884fafa2436e4a980393ff2022-12-21T20:21:19ZafrNorth-West UniversityPotchefstroom Electronic Law Journal1727-37812021-03-012410.17159/1727-3781/2021/v24i0a8824The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential ExcursionFriedrich Hamadziripi0Patrick C OsodeUniversity of Fort HareThe judiciary-exclusive role to allow or deny the commencement or continuation of contemporary derivative litigation is one of the critical aspects of such proceedings. Before the 2006 codification, derivative actions were brought under the common law as exceptions to the rule in Foss v Harbottle (1843) 67 ER 189. However, after realising intolerable deficiencies in the common law, the United Kingdom Law Commission (the Law Commission) recommended that there should be a new derivative procedure that met modern demands. This resulted in a statutory derivative remedy which can be activated in terms of Chapter 1 of Part 11 of the UK Companies Act, 2006. The effectiveness of legislative regulatory devices generally, and commercial law-related ones in particular, may to a greater extent depend on judicial interpretation and application. A conservative and literal interpretive approach that is purpose-neutral will significantly undermine the prospect of the current derivative remedy regime’s achieving the intended policy objectives. To that end, this contribution examines several court decisions handed down after the enactment of the 2006 Act and spanning over a period of approximately ten years. Ultimately, it will be considered whether the leave requirement in English derivative litigation is proving to be an invaluable and indispensable procedural prerequisite or an implausible barrier to honest litigants.https://journals.assaf.org.za/index.php/per/article/view/8824Derivative litigationLeave of courtJudicial attitudeDerivative actions |
| spellingShingle | Friedrich Hamadziripi Patrick C Osode The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion Potchefstroom Electronic Law Journal Derivative litigation Leave of court Judicial attitude Derivative actions |
| title | The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion |
| title_full | The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion |
| title_fullStr | The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion |
| title_full_unstemmed | The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion |
| title_short | The Leave of Court Requirement for Instituting Derivative Actions in the UK: A Ten-Year Jurisprudential Excursion |
| title_sort | leave of court requirement for instituting derivative actions in the uk a ten year jurisprudential excursion |
| topic | Derivative litigation Leave of court Judicial attitude Derivative actions |
| url | https://journals.assaf.org.za/index.php/per/article/view/8824 |
| work_keys_str_mv | AT friedrichhamadziripi theleaveofcourtrequirementforinstitutingderivativeactionsintheukatenyearjurisprudentialexcursion AT patrickcosode theleaveofcourtrequirementforinstitutingderivativeactionsintheukatenyearjurisprudentialexcursion AT friedrichhamadziripi leaveofcourtrequirementforinstitutingderivativeactionsintheukatenyearjurisprudentialexcursion AT patrickcosode leaveofcourtrequirementforinstitutingderivativeactionsintheukatenyearjurisprudentialexcursion |