Bamford and others v Harvey and another [2012] EWHC 2858 (Ch), [2012] All ER (D) 182 (Oct)
While “wrongdoer control” was not an absolute condition for a derivative claim, and while it was clearly desirable that the interpretation of the statutory provisions or their equivalents should be the same in England as in Scotland, there was nothing in the case of Wishart v Castlecroft Securities Ltd [2010] CSIH 2 to suggest that the potential for the company itself to commence proceedings was not a relevant consideration in the exercise of the court’s discretion. On the evidence, it was impossible to avoid the conclusion that the mechanism of instituting a claim by the company against H through the agreement had simply been overlooked. It was not elevating “wrongdoer control” to a preclusive condition for the court to hold that when proceedings clearly could be brought in the name of the company and there was no objection raised on that ground, they ought to be brought in the name of the company.
