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Unfair prejudice in United Kingdom company law
Unfair prejudice in United Kingdom company law is a statutory form of action that may be brought by aggrieved shareholders against their company. Under the Companies Act 2006 the relevant provision is s 994, the identical successor to s 459 Companies Act 1985. Unfair prejudice actions have generated an enormous body of cases, many of which are called "Re A Company", with only a six-digit number and report citation to distinguish them. They have become a substitute for the more restrictive conditions on a "derivative action", as an exception to the rule in ''Foss v Harbottle''.〔''Foss v Harbottle'' (1843) 2 Hare 461, 67 ER 189〕 Though not restricted in such a way, unfair prejudice claims are primarily brought in smaller, non public companies. This is the text from the Act.
Four main issues arise out of the interpretation of s.994. First of all, who has a right to complain against whom? Secondly, what specifically does the "company's affairs" mean in s.994(1)(a)? Thirdly, when is something "unfair" and at the same time "prejudicial"? And lastly, when it says "the interests of members", what counts as an "interest" of a "member"? The defining feature of the s.994 action is that it is completely vague. Courts were therefore capable of interpreting the provisions gradually as they felt would be fair. After hearing a case, a court may make "such order as it thinks fit" under s.996. This wide discretion means that previous case law is not as weighty in precedent, as in other areas of law, since each case will be decided on its particular facts.
==History==
In ''Re Saul D Harrison plc'',〔''Re Saul D Harrison & Sons plc'' () BCC 475, 488〕 Hoffmann LJ remarked,
"'Unfairly prejudicial' is deliberately imprecise language which was chosen by Parliament because its earlier attempt in s. 210 of the Companies Act 1948 to provide a similar remedy had been too restrictively construed. The earlier section had used the word 'oppressive', which the House of Lords in ''Scottish Co-operative Wholesale Society v. Meyer'' () AC 324 said meant 'burdensome, harsh and wrongful'. This gave rise to some uncertainty as to whether ' wrongful' required actual illegality or invasion of legal rights. The Jenkins Committee on Company Law, which reported in 1962, thought that it should not. To make this clear, it recommended the use of the term 'unfairly prejudicial', which Parliament somewhat tardily adopted in s. 75 of the Companies Act 1980. This section is reproduced (with minor amendment) in the present s. 459 of the Companies Act 1985."
Hence the unfair prejudice remedy was introduced as an implicit instruction to the courts to liberalise and broaden the law to allow for more petitions by minority shareholders.〔cf JC Coffee, ‘The Mandatory/Enabling Balance in Corporate Law: An Essay on the Judicial Role’ (1989) 89 Columbia Law Review 1618, 1688-9, "The familiar corporate statute authorizing courts to provide a remedy on a finding of "oppression" is an example of this looser form of statute, which is essentially a legislative instruction to the courts to solve a difficult, fact-specific problem. When the court is thus called upon to "fill the gap," the line between common-law policy making and statutory construction largely disappears."〕
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