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*Edin. L.R. 93 Wilson v Jaymarke Estates Ltd,1the first Scottish appeal concerning https://www.51lunwen.org/liuxuelunwendx/section 459 ofthe Companies Act 1985 to reach the House of Lords, gave the House a second opportunity toconsider the provision, eight years after O'Neill v Phillips.2Wilson is likely to be remembered,however, not for its discussion of section 459 but for remarks concerning the process of appeal fromScotland. A couple of months earlier, the Judicial Committee of the Privy Council also heard anappeal concerning the protection provided to shareholders against unfairly prejudicial conduct. Thisappeal came from Jersey and concerned a statutory provision identical in substance to section 459.The Committee's opinion in Gamlestaden Fastigheter AV v Baltic Partners Ltd.3will be of interest inScotland (and England) because explicit reference was made to section 459. This note analyses andexplains the significance of Wilson and Gamlestaden.

*Edin. L.R. 94 A. THE STATUTORY REMEDY

Section 994 of the Companies Act 2006 provides minority shareholders with their principal form ofstatutory protection.4Effective from 1 October 2007 but identical to its predecessor (section 459 of theCompanies Act 1985), section 994 enables a shareholder to petition the court for relief where theaffairs of the company are being (or have been) conducted in a manner unfairly prejudicial to hisinterests or to the interests of shareholders generally. The prejudice must be suffered quashareholder and not some other capacity.
Both unfairness and prejudice must be established but neither is defined. In this regard, the mostimportant decision on section 459 is O'Neill, in which Lord Hoffmann articulated a twofold test ofunfairness that has been accepted as authoritative in Scotland, although its application is not withoutits difficulties.6In Lord Hoffman's view, unfairness arises where there is a breach of the terms onwhich it was agreed that the company's affairs would be conducted, or where a majority exercises alegal power in a manner regarded by equity as contrary to good faith. Lord Hoffmann also recognisedthat unfairness could arise where an event occurs which “puts an end to the basis upon which theparties entered into association with each other, making it unfair that one shareholder should insistupon the continuance of the association”.7Moreover, in Scotland it has been recognised that undersection 459 the court can give effect to “recognised restraints on the exercise of rights or powers -such as … for example, on personal bar or acquiescence or waiver”.
Lord Hoffmann's opinion in O'Neill represented the refined articulation of an approach he haddeveloped earlier in the Court of Appeal9and High Court.10These earlier decisions are significant foranother reason: they established the remedy's success through purposive interpretation, particularlyconcerning the broad interpretation of the qua member requirement and the recognition that thenature of a shareholder's participation留学生论文代写in a company can be broader than his strict legal rights.

Section 996 of the 2006 Act enables the court to make “such order as it thinks fit for giving relief”. Themost popular is the purchase of the petitioning shareholder's shares b本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。