Daniel Lightman revisits the statutory derivative claim…three years on
The statutory derivative claim recently celebrated its third birthday. It was created by Part 11 of the Companies Act 2006 (CA 2006), which came into force on 1 October 2007.
This article first considers the approach which the courts have taken to the statutory derivative claim in its first three years, and then identifies two potentially significant issues as to the ambit of derivative claims which are currently unclear and await resolution by the courts, namely whether the common law derivative claim has been abolished and whether such claims can be brought in respect of a company in liquidation.
The two-stage application for permission
Because he is seeking to bring a claim not on his own behalf but on behalf of and for the benefit of the company of which he is a member, after issuing the claim form the derivative claimant must apply for permission to continue the claim. CA 2006 provides for a two-stage procedure for the court to consider the permission
