Just doing some reading on the new sections of the Companies Act relating to derivative claims, is anyone aware of any claims brought as yet under the new guidelines? If so have they been successful? Are there any pitfalls a shareholder should be aware of in bringing such a claim?
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We have threatened new derivative proceedings on behalf of a client, but have not tested them yet. The main pit fall for a client is to make sure the claim is in truth a claim of the company and not a claim about the internal dispute amongst the shareholders. The widening of the ambit of the derivative claim can induce shareholders to attempt to bring a claim that is not in truth a derivative claim at all. The costs position is much the same, though, and so there is some safeguard in place because you have to get the permission of the court to pursue the claim and a court will kick the case out at the early stage where the costs are not so great. Shareholders will of course seek an indemnify for the costs of the claim, but they need to bear in mind that, because they are pursuing a claim for the benefit of the company, the remedy is the company's and not their's - that is something shareholders sometimes confuse.

Best

BR
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Can't find anything about procedures to begin a claim like this, what comes first?
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A derivative claim must be started by a claim form but you cannot take any further step in the proceedings without the permission of the Court other than making an urgent application for relief. So you then have to make an application for the requisite permission and you have to notify the company concerned. It is possible in certain circumstances to avoid giving notice but those are likely to be circumstances where the company would frustrate the remedy.

The court may order the company to indemnify the claimant against liability for costs in the permission application and/or the main derivative claim.

Best

BR
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For the benefit of the ignorant amongst us, what is a "statutory derivative claim" :|
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The Companies Act 2006 deals with the mechanics of the derivative claim in Part 11 and so that is where the "statutory" bit comes from, although it is a slightly redundant word - a claim is either a derivative claim or its not, and if it is then it will be pursued through the Courts, the justification being the Companies Act 2006. The main difference from the previous position is the widening of the grounds for a claim which comes from the 2006 Act so I suppose the OP used statutory in contrast to the previous common law position.

Best

BR
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Thanks but it was the "derivative claim" bit that I didn't understand and I was too lazy to Google it :redface:

Now got the answer:
"A derivative claim is a claim brought by a shareholder (rather than a director) on behalf of a company in respect of a cause of action belonging to a company. They are fairly rare as the directors will usually bring proceedings in the company's name."

and a weblink to The Department for Constitutional Affairs (http://www.dca.gov.uk/consult/civ-just/accjusb.htm) just in case anyone else wants to know
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[quote=bracherrawlins;496997] I suppose the OP used statutory in contrast to the previous common law position.

Yes. Thank you for the advice.
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