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A Mixed Legal System in TransitionT. B. Smith and the Progress of Scots Law$
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Elspeth Reid and David Carey Miller

Print publication date: 2005

Print ISBN-13: 9780748623358

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748623358.001.0001

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Borrowing from English Equity and Minority Shareholders’ Actions

Borrowing from English Equity and Minority Shareholders’ Actions

(p.100) 5 Borrowing from English Equity and Minority Shareholders’ Actions
A Mixed Legal System in Transition

Niall R Whitty

Edinburgh University Press

In Anderson v Hogg a shareholder in a company presented a petition under section 459 of the Companies Act 1985 for relief against unfair prejudice. The petitioner sought to have the respondent ordained to repay to the company sums which the company had paid to the respondent by way of allegedly unauthorised salary bonus, redundancy payments, and the like. In the Outer House, Lord Reed found that the various payments did not result in unfair prejudice to the petitioning shareholder and refused the petition. This chapter argues that the traditional Scottish scepticism about equity as a source is well justified. In particular, it is justified by among other things the very policy against unwise anglicisation which Sir Thomas normally preached. More specifically, the chapter contends that it is misleading to say that the Court of Session has an equitable jurisdiction comparable to that of the English Court of Chancery; that we do not need such a jurisdiction; and what is more we are better off without it.

Keywords:   Anderson v Hogg, Companies Act 1985, unfair prejudice, equity, anglicization, Sir Thomas Smith, Court of Session, jurisdiction, Court of Chancery

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