CONTENTS. Appendix 1: Sample previous Examination Paper (May 2012) 93

Transcription

2 CONTENTS Section Page no. Module Calendar (lecture & seminar plan) 3 Module Descriptor 4 Teaching Staff and Contact Details 7 Student Responsibility 8 Assessment and Feedback 9 Textbooks and Materials 15 Guidance to Referencing and Citations 16 Lecture Programme: LECTURE 1 Methods of Trading; Formation; incorporation 25 LECTURES 2 & 3 Separate legal personality & lifting the veil of incorporation 28 LECTURE 4 Promoters and Pre-Incorporation Contracts 31 LECTURE 5 and 6 The Constitution of a Company 34 LECTURE 7 Directors 40 LECTURES 8 & 9 Directors Duties 42 LECTURE 10 - Disqualification of Directors 45 LECTURE 11 Final Coursework briefing, Revision & Coursework Technique 49 LECTURE 12 Shares and Shareholders (an overview) 50 LECTURE 13 Shareholders Meetings and Voting 54 LECTURE 14 Feedback from the Coursework 57 LECTURE 15 Shareholders Rights and Remedies 58 LECTURES 16 & 17 Maintaining and Raising Capital & Charges 62 LECTURES 18 & 19 Insolvency and Liquidation 66 LECTURES 20 & 21 Vulnerable Transactions in Insolvency &Directors Liabilities 70 LECTURE 22 Revision, Exam Preparation and Technique 73 Seminar Programme: Seminar 1 - Introduction and Forming a Company 75 Seminar 2 - Companies and Separate Legal Personality 76 Seminar 3 - Separate Legal Personality and Lifting the Veil of Incorporation 77 Seminar 4 - Promoters and Pre-Incorporation Contracts 79 Seminar 5 - Company's Constitution, Article clauses & Shareholder Agreements 81 Seminar 6 - Directors' Duties 83 Seminar 7 - A Shareholders Meeting and Voting 85 Seminar 8 - Minority Shareholder Protection 87 Seminar 9 - Charges: Fixed and Floating 89 Seminar 10 - Liquidation and vulnerable transactions 91 Appendix 1: Sample previous Examination Paper (May 2012) 93

3 COMPANY LAW - LECTURE & SEMINAR PLAN /13 Wk No W/C Date Lecture Lecture Subject Area Seminar Seminar Subject Area 10 1st Oct th Oct Methods of trading; Company Formation; Consequences of Incorporation 2 Separate Legal Personality & "Lifting the Veil" 3 Separate Legal Personality & "Lifting the Veil" 1 Introduction to Company Law and Forming a Company 12 15th Oct 4 Promoters & Pre-Incorporation Contracts 13 22nd Oct 5 Constitution of a Company 2 Companies and Separate Legal Personality 14 29th Oct 6 Constitution of a Company 15 5th Nov 7 Directors Generally 3 Separate Legal Personality & "Lifting the Veil" 16 12th Nov Reading week 17 19th Nov 8 Directors' Duties 18 26th Nov 9 Directors' Duties 4 Promoters and Pre-incorporation contracts 19 3rd Dec 10 Disqualification of Directors 20 10th Dec 11 Final Coursework briefing and technique 5 The Constitution of a Company 21 17th Dec No lecture - assessment preparaton No seminars - Blackboard MCQ exercises as revision 22 24th Dec Student Vacation 23 31st Dec Student Vacation 24 7th Jan STUDY WEEK 25 14th Jan SHU Exam Period - 14th to 18th 26 21st Jan SHU Exam Period - 21st to 25th 27 28th Jan 12 Shares and Shareholders - an overview 28 4th Feb 13 Shareholders' Meetings and Voting 14 Coursework Feedback 29 11th Feb 15 Shareholder Rights and Remedies 30 18th Feb 16 Maintaining and Raising Capital - Inc Charges 6 Directors' Duties 7 Shareholders' Meeting and Voting 31 25th Feb 17 Maintaining and Raising Capital - Inc Charges 32 4th Mar 18 Insolvency and Liquidation 8 Minority Shareholder Protection 33 11th Mar 19 Insolvency and Liquidation 34 18th Mar 20 Vulnerable Transactions in Insolvency 9 Charges: Fixed/Floating 35 25th Mar Student Vacation 36 1st Apr Student Vacation 37 8th Apr 21 Vulnerable Transactions in Insolvency 38 15th Apr 22 Revision Overview and Exam Technique 10 Liquidation 39 22nd Apr No lecture - assessment preparaton 40 29th Apr th May to 31st May 2-3 5th Aug to 16th Aug STUDY WEEK SHU Exam Period Referred/Deferred Assesment Period No seminars - Blackboard MCQ exercises as revision

4 MODULE DESCRIPTOR MODULE TITLE Company Law SI MODULE CODE L & L CREDITS 20 LEVEL 5 & 6 JACS CODE M221 SUBJECT GROUP LAW DEPARTMENT Law, Criminology and Community Justice MODULE LEADER Mark Edwards NOTIONAL STUDY Tutor-led Tutor-directed Self-directed Total Hours HOURS BY TYPE MODULE AIM(S) The module is designed to introduce you to the legal structure of a company as an economic mechanism of conducting business and to develop your knowledge, understanding and appreciation of topics central to company law. The aim is to enable you to identify key legal issues in relation to company law and propose coherent solutions to practical, hypothetical situations, through the use of case law, statute and regulatory practice. MODULE LEARNING OUTCOMES By engaging successfully with this module you will be able to Level 5 Identify, explain and apply legal principles and concepts in relation to company law. Evaluate and critically analyse the relevance and significance of facts presented, by coherently synthesising a line of legal argument, justified by relevant legal authority. Demonstrate research skills by distinguishing between the range of legal and academic sources that are relevant. Use and explain specific terminology in relation to company law. Solve legal problems by identifying solutions and critically evaluate aspects of law, in a written form, to accepted academic and legal conventions. Level 6 Identify, explain and apply legal principles and concepts in relation to company law in sufficient detail for the purpose and identify uncertain, ambiguous, contradictory or limited legal aspects. Evaluate and critically analyse the relevance and significance of facts presented, by coherently synthesising a line of legal argument, justified by relevant legal authority and make defensible judgements and arguments. Demonstrate research skills by identifying a broad range of sources and distinguishing between the range of legal and academic sources that are relevant. Use and explain specific terminology in relation to company law. Solve legal problems by identifying focussed contemporary solutions and critically evaluate and comment on aspects of law, in a written form, to accepted academic and legal conventions. 4

5 INDICATIVE CONTENT The learning outcomes will be met by covering the following general topics in the module: Company formation Separate Legal Personality and lifting the veil Promoters and Pre-incorporation contracts Company Constitution Management of a Company in particular roles and responsibilities of directors Company Ownership in particular shares and shareholders Raising of Capital Insolvency and liquidation Vulnerable transactions in insolvency and directors liabilities LEARNING AND TEACHING METHODS You will be supported in your learning, to achieve the learning outcomes, in the following ways: Contact sessions Lectures: The module is delivered via a weekly one-hour lecture designed to introduce a particular topic area and to concentrate on the key aspects of that part of the law. The lecture is delivered via a PowerPoint presentation, slides for which are provided via Blackboard (see VLE below). Seminars: Seminars are delivered fortnightly to timetabled classes of a maximum of 20 students. Typically seminars are based on hypothetical company law problem scenarios that require adoption of an enquiry-based learning approach to study. You are required to come prepared to discuss preprepared solutions to the problem. Learning occurs through the collective contributions of students and is guided and corrected by the seminar tutor. The learning in the seminars feedsforward to subsequent seminars and learning is directly aligned to the assessment tasks in the module. The approach to the subject matter is broadly incremental, each lecture building on the knowledge gained in the earlier lectures. The role of the seminars is to reinforce legal and academic content and to provide opportunities for you to apply, discuss and reflect on your learning. Module Manual Learning is supported by a Module Manual (this document) that contains a full lecture and seminar schedule, details on the aims and objectives, the learning, teaching and implementation strategy, an overview of assessment and feedback on the module, student resources required, details of the module delivery team, the role of the student within the module, summative assessment feedback criteria, lecture outlines, seminar questions with preparation tips and a sample prior year assessment paper. 5

6 Virtual Learning Environment (VLE) Blackboard The delivery of the module is aided by a bespoke Blackboard site to which all students are enrolled. Blackboard is the main communication device with students outside contact sessions. The Blackboard site includes an electronic version of the Module Manual and all the material within that Manual (detailed above) can be accessed electronically. In addition, the Blackboard site includes: links to PowerPoint slides for all lectures access to formative assessment in the form of multiple choice questions that support and supplement each seminar links to some key cases and statutes assessment guidance guides to using legal databases (e.g. Westlaw and LexisLibrary) guides on how to reference for the assessment task using the Oxford Standard for Citation of Legal Authorities external links to key Government and legal profession web sites assessment details, criteria and guidelines on-line submission of coursework feedback on grades attained in formative and summative assessment a Blackboard help content area rules and regulations in relation to the University s cheating procedure On-line Multiple Choice Questions and Feedback Learning is supported outside contact sessions with a set of formative assessment questions through a series of on-line Multiple Choice Questions (MCQ s) that support and supplement each seminar. Each question provides the opportunity for additional information to supplement knowledge, whether the question is answered correctly or not. This will give you immediate feedback on how you are progressing on the module. The use of this Computer Assisted Leaning (CAL) will help you develop and broaden research skills as well as forcing the use of IT in learning. As these questions support the seminar preparation, it also aids time management skills. Weekly surgery/meetings/drop-in sessions Each tutor has a formal weekly surgery time that students can arrange to meet their seminar tutor in order to support their learning. You can also contact tutors via- and arrange mutually convenient times for meetings. At specific times throughout the module, drop-in sessions may be timetabled to offer feedback or guidance. Students can or call tutors for advice or guidance. Peer Support Groups e-learning is further built into the module, with the ability of students to use a discussion board to act as a method of peer support. Additionally you can optionally work in peer groups to collaborate on seminar preparation work via a WIKI. Please contact the Module Leader, Mark Edwards, if you would like this to be set up for you and your peers. 6

7 Teaching Staff and Contact Details Teaching Staff The members of staff teaching on this course are: Mark Edwards (Module Leader) Jeremé Snook Mark Edwards has overall administrative responsibility for the course. Students will be allocated to seminar groups. It is essential that you keep to these groups and changes will be agreed only in exceptional circumstances. Please note that attendance at seminars is compulsory and registers will be kept. Staff Contact Details Mark Edwards Office: Southbourne, Room 243 (Module Leader) Tel: Jeremé Snook Office: Southbourne, Room 240 Tel:

8 Students' Role within the Module We assume that you will take responsibility for your own learning and we expect you to attend ALL lectures and seminars, as learning is a shared experience and you have a part to play in promoting both individual and collective understanding. Many of the legal concepts and terminology will be new to students (it has its own unique language in parts) so attendance in lectures and seminars is mandatory. Attendance is essential to: gain understanding of the relevant legal principles and their application help you test your understanding of the material with your module tutor help you develop your knowledge and skills help you prepare for all your assessments receive information about the module receive feedback on your understanding and progress Preparation for seminars We want you to feel comfortable attending seminars as these are vital to your development and overall results. Therefore, it is essential that you prepare the seminar material as indicated in the module handbook. However, this does not mean we expect students to know all of the answers all of the time - far from it. Students learn by getting things wrong, as well as right, and our seminars are such that we encourage students to have a go! That said, we know students do benefit by doing sufficient work in advance of the seminar as then they really do gain the maximum benefit from it. This approach works as it prevents students 'sponging' off the work of others. It also prevents the seminar becoming a second lecture, which is fruitless for everyone. Absence If you are absent, which should be because of an emergency or serious illness only, then please be courteous and let your tutor know as soon as you can, preferably in advance. If you are absent for a significant period of time you must also let the law administration staff in Southbourne know. If the absence is due to illness or other personal problems, which may affect your assessments(s), you may need to submit an Exceptional Extension Request Form or an Extenuating Circumstance Form. These are available on shuspace or from Southbourne Helpdesk. Please see the submission of exceptional extension requests and the submission of extenuating circumstances for more information. Plagiarism We actively have systems that detect plagiarism, so please familiarise yourself with the SHU assessment and plagiarism regulations. These can be found on both shuspace and the Company Law Blackboard site. Important points there is a direct correlation between attendance, seminar preparation and good results in this module. students who always attend do very well in the module - Company law historically boasts a high level of 2:1 and 1st class student marks! students who don't attend regularly do very badly - poor attendees struggle with the legal concepts in company law and invariably fail. 8

9 ASSESSMENT Task No. TASK DESCRIPTION SI Code Task Weighting % Word Count / Duration 1 Essay Problem question CW 50% 2,000 2 Examination (Pre-Seen) EX 50% 2 hours ASSESSMENT CRITERIA The learning in the module is measured by two separate summative assessment tasks: coursework and an exam, marks from which count towards the overall module mark. It is also formatively assessed by a series of separate on-line tests in the form of multiple choice questions. Formative The series of multiple choice questions, comprising between 10 and 20 questions each, are set to supplement most seminar topic areas. These are completed after the lecture on the topic area, but before the seminar, however, are not linked to the overall module marks. Summative Task 1 Coursework. This task is a 2,000 word answer to a company law based problem question on semester one delivered materials. It is due in after the end of semester one (see Assessment Manager for exact date) and is weighted at 50% of the module marks. The coursework will be available to view on Blackboard from 9 th November. Please note that staff are not allowed to comment on draft assignments in advance of submission. Please refer to further key information on this task on page 12 onwards below. Task 2 - Examination This task is a pre-seen exam where you are required to answer the questions set, within a two hour period. The assessment comes at the end of the academic teaching year in May. This task is also weighted at 50% of the module marks. The Criteria for Assessment You are assessed based on the following criteria, in both summative assessment tasks, in order to calculate whether the learning outcomes (above) have been met based on the question(s) set: Identification of the legal issues raised Application of the law to the facts Understanding of the topic Use of legal authority Use of other materials Effective conclusion drawing together evidence and stating advice clearly Presentation of references Spelling, grammar and syntax Overall presentation 9

10 Pass Descriptor To pass the module a student will meet the following criteria: Sufficient key aspects of the main legal issues, raised by the question, are identified. Credible grasp of some relevant legal principles applied to the facts. Use of plausible legal and academic authority to back up arguments made. Some credible solutions incorporated in the work. The use of a recognised method of referencing (OSCOLA only for coursework). The work written is understandable and commensurate with a minimum standard acceptable for an English law degree. The work has some logical or credible structure and is presented in line with academic conventions and guidance supplied in an assessment rubric. Retrieval of failure The module is governed by university regulations on assessment and adopts the Model A assessment method, which provides that a mark of 40% must be achieved in the module overall to pass. Re-assessment for students, who have not achieved the 40% module minimum mark, is done on a task for task basis. A new coursework question and new exam is set for the August re-assessment period on the same basis as the original tasks above. Under university regulations, following referral, the overall mark for the module will be capped at 40%. Students will be able to benefit from general and specific feedback (see feedback section below) on the original task to help improve in the specific re-assessed task. FEEDBACK You will receive feedback on your performance in the following ways Feedback through seminars You will receive informal feedback from the tutor, and from peers, in relation to how you are progressing on the module in seminars. You can self-assess your own performance and understanding in these seminars, and reflect on how you might further enhance your own learning. Seminars are fortnightly so this method of feedback is immediate and built into the module from start to finish. Feedback through e-learning/formative assessment On-line Multiple Choice Questions (MCQ) Most seminar topics are supported by an on-line multiple choice test which acts primarily as formative assessment. The MCQ s are set up to give specific feedback on both correct and incorrect answers. This supplements understanding and knowledge and feeds back, on completion, on a question by question basis. Overall you gain a mark (e.g. a score out of 20) that immediately feeds-back to give an overall indicator of how successful your learning on that topic has been so far. As any learning gaps are filled by feedback on incorrect answers, and even correct answers are supplemented by feedback and additional information. This extra learning feeds-forward into the seminar on that topic. 10

11 Discussion boards & WIKI s These mechanisms allow for peer feedback in an environment where learning is not reliant on tutor input. It allows for the learning gained from these mechanisms to feed-forward into seminars, in addition to formative and summative assessment. My Grades Formative and summative feedback on marks can be accessed through the VLE Blackboard site. Formative results on the MCQ's are available immediately on completion of the test. Marks for summative assessment will be made in line with the timescales detailed below. Summative assessment Task 1 (problem question coursework). A tutor will complete a formal feedback sheet that is designed to give feedback on the key assessment criteria. This feedback allows you to see which areas of your learning on that assessment task have been good, and which areas need to be improved. The form allows you to reflect on the positives and negatives in your work and implement strategies to improve future work. It feeds-forward into the next assessment task as the key areas being assessed are automatically broken down into their component parts, so a student can focus future learning as appropriate. There is also an additional comments section that allows for specific comments on the work by the tutor and, by corollary, this gives you an indication how future work could be improved. Feedback would normally be made in line with timescales defined on Assessment Manager. Task 2 pre-seen exam. Feedback can be sought by students directly to tutors immediately following the release of marks. One-to-one feedback You can arrange to see a tutor individually during timetabled surgery time, or at a mutually convenient time, to obtain feedback on your learning. Usually this is best done following specific topics, and the seminars on that topic. 11

12 ASSESSMENT OF THE COURSEWORK PROBLEM QUESTION. The following two pages contain a copy of the marksheet that your tutor will complete for the problem question coursework assessment you are required to do. Please read it as it indicates what you need to do, in each aspect of your work, to gain the highest possible mark. Your work will be assessed on the following area: IDENTIFICATION OF LEGAL ISSUES RAISED APPLICATION OF LAW TO FACTS UNDERSTANDING OF THE TOPIC USE OF CASES AND CASE CITATION USE OF OTHER MATERIALS CONCLUSION PRESENTATION OF REFERENCES SPELLING, GRAMMAR AND SYNTAX - Note, this is extremely important. OVERALL PRESENTATION You should note that each section does not carry the same weighting, and that the final mark reflects the academic worth of the assignment as a whole. 12

13 FEEDBACK SHEET PROBLEM ASSESSMENT STUDENT NAME:...SAMPLE ONLY... MODULE:...SAMPLE ONLY... 1 st 70%and over 2:i 60-69% 2:ii 50-59% 3 rd 40-49% FAIL Below 40% IDENTIFICATION OF LEGAL ISSUES RAISED Excellent identification of legal issues raised Accurate identification of legal issues raised Generally accurate identification of legal issues raised Incomplete identification of legal issues raised Little or no identification of legal issues raised APPLICATION OF LAW TO FACTS Excellent application Cogent application Sound application Incomplete application Little or no application UNDERSTANDING OF TOPIC Evidence of a high degree of insight, imagination or innovative thought Evidence of insight and imagination Clear grasp of the scope and limitations of relevant legal principles Some grasp of the relevant legal principles Errors of factual interpretation as well as misapplication of relevant/irrelevant legal principles USE OF LEGAL AUTHORITY Excellent use of relevant authority for resolving the problem Accurate use of relevant authority for resolving the problem Adequate use of relevant authority. Some inadequate or irrelevant use of authority Poor use of authority Inadequate and/or irrelevant use of authority USE OF OTHER MATERIALS Excellent initiative in reading around the subject in support of your solution Clear use of secondary materials to support your solution Adequate use of secondary materials Poor use of secondary materials Little or no use of secondary materials CONCLUSIONS DRAWN Excellent conclusions drawing together your evidence and stating clearly your advice Cogent and intelligent conclusions generally Conclusions attempted but some points missing Conclusions rather perfunctory or repetitive or comes to an abrupt end without proper concluding section No proper conclusions drawn

14 Other Features PRESENTATION OF REFERENCES References effectively used and appropriately cited and listed References generally used and cited correctly References not always properly used and/or cited correctly References not used and/or poorly cited No attempt at references or citation. Weak or no Bibliography SPELLING, GRAMMAR AND SYNTAX (SENTENCE STRUCTURE) No errors of grammar, spelling or syntax. Articulate and persuasive use of English Few errors of grammar, spelling or syntax. Effective use of English Occasional errors of grammar, spelling or syntax. Style generally effective Frequent errors of grammar, spelling or syntax. Style too casual, too colloquial and careless Grammar, spelling and syntax and use of English need urgent attention OVERALL PRESENTATION Excellently organised, structured and presented Well organised structure and presentation Organisation, structure and presentation generally satisfactory Organisation, structure and presentation need attention Weak presentation or structure Students should note that each section does not carry the same weighting, and that the final mark reflects the academic worth of the assignment as a whole. ADDITIONAL TUTOR FEEDBACK MARK AWARDED 14

15 LEARNING RESOURCES (Including textbooks and materials) The key learning resources available to support students learning are: Textbooks: Alan Dignam and John Lowry, Company Law (7 th edn, OUP 2012) Charles Wild and Stuart Weinstein, Smith & Keenan s Company Law (15 th edn, Longman 2011) Stephen Mayson, Derek French and Christopher Ryan, Mayson French & Ryan on Company Law (29th edn, OUP 2012) Cases & Materials Textbook: Len Sealy & Sarah Worthington, Cases and Materials on Company Law (9th edn, OUP 2010) Alan Dignam, Hicks and Goo s Cases and Materials on Company Law (7 th edn, OUP 2011) Statute Book: Mark Edwards (ed), Company Law 2012/13 Statute Seminar Companion (2 nd edn, Longman 2012) Derek French, Blackstone s Statutes on Company Law (OUP, Oxford 2012) Other learning resources: The Virtual Learning Environment (VLE) the e-learning mechanism known as Shuspace and specifically Blackboard (also see above) Legal databases in particular Westlaw and LexisLibrary o These resources are invaluable as they provide on-line electronic links to cases, statutes, journal articles and other key legal materials The Learning Centre o Core text books o Key text area o Silent study area o Group study areas o Individual work areas o PC s, Wifi for laptops o Hire of audio-visual equipment Company Law Module Manual (details of key information it contains can be found above) Lecture slides o These are available to print off in advance of lectures to assist with note taking and to form a basis for research for seminars. These will also be a useful aid to revision later on in the module. Screen-casts o Occasionally screen-casts are used to graphically present legal material or to explain seminar or lecture concepts. This can be a useful way to start logically constructing structured legal arguments. Company Law Club on-line o This is an on-line resource with up-to-date information on all the key areas covered by the course.

16 Guide to Referencing and Citations for Law Students Accurate and consistent referencing is essential in all academic work. Whenever you refer to either the work or ideas of someone, or are influenced by another's work, you must acknowledge this. Similarly if you make a direct quotation from someone's work this should be referred to accurately. There are a number of systems of referencing. This guide offers guidance based on the Oxford Standard for Citing Legal Authorities (OSCOLA) - it differs in some small respects from OSCOLA. The full OSCOLA document, giving more examples and covering the full range of materials, is available online from Oxford University. Quotations and Referencing Passages taken from the work of others must be suitably acknowledged with the use of speech marks and a clear reference to the source. Accurate quoting and referencing give credit both to you and to those whose work you have used. References and quotes reflect your research and indicate the depth of reading you have undertaken. They also allow others to follow up on the work that you have done. If you do not accurately reference your work you may commit plagiarism. This is a disciplinary offence under the University's Assessment Regulations, is regarded as cheating (whether intentional or not), and normally will result in the coursework being marked as zero. More serious consequences are also likely to follow. You should be aware that the Law Society and Bar Council requires all applicants for membership to declare whether they have ever 'committed an act of plagiarism or cheating in any form of assessment' and will require two referees to provide written statements to the Society concerning the issue. You should also be aware that employers are extremely reluctant to hire people who have been found guilty of acts of dishonesty. It is important, therefore, to make a careful note of your sources of information as you are doing your research and collecting materials to incorporate in your answer so that you can identify and acknowledge them when writing up and list those sources in your bibliography. References - footnotes Each time you use a resource, directly or indirectly, the reference must be accompanied by a footnote giving details of the source, as outlined below. Your footnotes will give the details of the resource, including page or paragraph numbers where appropriate. Substantial quotations (of three lines or more) should be single spaced, indented from the margin and preceded by a colon. This ensures that there is a clear distinction between your own words and the words you are quoting. Thus: 16

17 Howarth has argued that: In cases involving injuries caused by the police in the course of apprehending suspects, whether the injury is to the suspect or to third parties, a relevant consideration is the public interest in the punishment and prevention of crime. The more dangerous the criminal to public safety, the more risks the police should be entitled to take. 1 The 1 after the quote links to a footnote giving details of the source quoted, including the page(s). Shorter quotes should be enclosed in quotation marks. How to footnote specific materials The rules for footnotes are based on OSCOLA - see for details. General note: If you are using an electronic source do not simply copy and paste from the browser's address bar. You should always provide the title of the work you are referencing and the author and date, if available, separate from the URL. You should ensure that any web address is permanent so that it can be followed by the reader. Books: Author initial surname, title, (edition, publisher year) page(s). For example: D Howarth A textbook on tort (Butterworths 1995) 51 Journal articles: Author initial surname, 'title of article', (year) details of journal, first page at specific page(s). For example: C McGlynn 'Families, partnerships and law reform in the European Union: balancing disciplinarity and liberalisation' (2006) 69 (1) MLR 92 at 94 If you have used an online version of an article, use the same format but add the details of the database you used. For example: C McGlynn 'Families, partnerships and law reform in the European Union: balancing disciplinarity and liberalisation' (2006) 69 (1) MLR 92 at 94 < accessed 24th June 2008 Use an accepted abbreviated form of the title where available; you can search by title on the Cardiff site. For example, MLR is the preferred abbreviation for Modern Law Review. Case report A practice note issued by Lord Woolf CJ stated that: For the avoidance of doubt, it should be emphasised that both the High Court and the Court of Appeal require that where a case has been reported in the official law reports published by the 1 D Howarth A textbook on tort (Butterworths 1995)

18 Incorporated Council of Law Reporting for England and Wales it must be cited from that source. Other series of reports may only be used when a case is not reported in the law reports. [2001] 1 All ER 193 This practice note also introduced neutral citation, whereby The neutral citation will be the official number attributed to the judgment by the court and must always be used on at least one occasion when the judgment is cited in a later judgment. Once the judgment is reported, the neutral citation will appear in front of the familiar citation from the law report series. Thus: Smith v Jones [2001] EWCA Civ 10 at [30], [2001] QB 124, [2001] 2 All ER 364, etc. The paragraph number must be the number allotted by the court in all future versions of the judgment. Give case details as per the following. Where no neutral citation is available: Case name citation (court) page. Example: Re W (a minor) (medical treatment) [1992] 4 All ER 627 (CA (Civ)) 646 Where a neutral citation is available: Case name neutral citation, report citation, page. Example: R. (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3, [2010] 1 A.C. 410, 412 If you have used a report with paragraphs rather than pages, put the paragraph(s) numbers in [ ] after the citation, e.g. this EU case (example taken from OSCOLA document): Case C 176/03 Commission v Council [2005] ECR I 7879, paras UK Legislation Title, year, and sections etc as appropriate. For example: Unfair Contract Terms Act 1977, s2 (1) EU legislation Type of legislation number title OJ reference, article number. For example (taken from OSCOLA document) Council Regulation (EC) 139/2004 on the control of concentrations between undertakings (EC Merger Regulation) [2004] OJ L24/1, art 5 18

19 Bibliography Basics The rules for bibliography are based on OSCOLA - see for details. General note: If you are using an electronic source do not simply copy and paste from the browser's address bar. You should always provide the title of the work you are referencing and the author and date, if available, separate from the URL. You should ensure that any web address is permanent so that it can be followed by the reader. A bibliography gives details of the books, articles, Parliamentary proceedings, government publications and other sources you have consulted or used. This should appear at the end of your assignment, starting on a new sheet. Items in the Bibliography should be ordered alphabetically by author and, when there is more than one entry by an author, then by date. Where there are two or more works by an author in the same year distinguish them by date and letter (e.g. 1995a; 1995b). The details of the items used in your work should be given in the following style. There are two principal differences between footnotes and bibliography entries: (i) Your footnotes will where necessary specify the pages used for the particular reference (ii) In the bibliography the author's name comes first followed by initial(s) Books When referring to books, the format is: Example: Author surname initial(s), Title in Italics (edition if not the first, publisher date) Treitel G H, The law of contract (12th edn, Sweet and Maxwell 1995) If there are two authors name both; more than two, name only the first followed by 'and others': Twining W and Miers D, How to do things with rules (4th edn, Cambridge University Press 1999) Goode R and others, Transnational commercial law: international instruments and commentary (OUP 2004) Edited books should be listed thus: Lloyd-Bostock S (ed), Psychology in legal contexts (Palgrave Macmillan 1981) A chapter in an edited book should give: the author's surname and initial(s), 'title of the chapter', edited book reference followed by detailed location in the book. Thus: Inman M, 'Police Interrogation and Confessions' in Lloyd-Bostock S (ed) Psychology in legal contexts (Palgrave Macmillan 1981) 19

20 Journals When referring to journal articles, give author's surname and initials, the title in single inverted commas, year, volume, issue, journal name and page references. Example: McGlynn C, 'Families, partnerships and law reform in the European Union: balancing disciplinarity and liberalisation' (2006) 69 (1) MLR 92 Use an accepted abbreviated form of the title where available; you can search by title on the Cardiff site. For example, MLR is the preferred abbreviation for Modern Law Review. If you are unsure of a journal article's correct citation, it is often found on the first page of the article. If you quote from a journal article accessed via a database, reference it as if it were a hard copy journal, adding the name of the database and date accessed: Ralton A, 'Establishing a beneficial share: Rosset revisited' [2008] Fam Law 424 < accessed 24th June 2008 Electronic sources When quoting from electronic sources, the format is: author, title, (date) where available, [online], <address>, and date accessed, e.g. Rayner J, Lawyer in the news (2008) [online] < Accessed 20/06/2008 It is generally advisable to use the 'top level' address when listing news items such as the one above. If you are quoting an electronic book from an ebook database, give: author(s) or editor(s), title, [online], (date), edition (if not the first), ebook from name of database, address, date accessed, e.g. CIA The world factbook [online] (2008) ebook from Bartleby. < accessed 20/06/2008 Parliamentary Proceedings Refer to debates reported in Hansard as follows: HC Deb or HL Deb followed by date, volume, and columns. Thus: HC Deb 7 February 1940, vol 357, cols HL Deb 21 July 2005, vol 673, col WA261 HC Deb 25 July 2006, vol 449, col 1199W The W and WA refer to written answers. If you are quoting from before 2001, put WA in parentheses to indicate a written answer. 20

21 Refer to Bill committee debates reported in Hansard as follows: title of the Bill followed by Deb, date and column. Thus: Armed Forces Bill Deb, 17 February 2011, cols Refer to other committee material as follows: name of committee, report title in italics, then in brackets house session, and paper number. Thus: Business, Innovation and Skills Committee Is Kraft working for Cadbury? (HC , 871) Other official materials For materials such reports of law reform bodies or government departments, give the name of the organisation, the title of the report and reference number if any, and the date in brackets. Thus: Criminal Law Revision Committee, Theft and Related Offences (Cmnd 2977, 1966) DHSS, Reform of the Supplementary Benefits Scheme (Cmnd 7773, 1979) Law Commission, Liability for Psychiatric Illness, Consultation Paper No 137 (1995) To list Royal Commissions, give the title of the Commission's Report plus year; Command number; Chair's name. Thus: Report of the Royal Commission on Gambling (1978, Cmnd 7200, Chairman Lord Rothschild) European Commission documents For European Commission documents, give the following details: the body that produced the document, the title and the COM number. Thus: Commission, 'Proposal for a Council Regulation repealing Regulation (EEC) No 3448/80 on the implementation of Article 43 of the 1979 Act of Accession concerning the system of trade applicable to the goods covered by Regulations (EEC) No 3033/80 and (EEC) No 3035/80' COM(2010) 751 final Radio, television and film Use the following styles for radio and television programmes and films. Radio: Title of broadcast, date of broadcast, station; e.g. Unreliable evidence, 24/04/2010, BBC Radio 4 If you have listened to a recording of the show provided through the VOD service or a CD recording, add [VOD Sound recording off-air] or [Sound recording off-air] as appropriate, e.g. Law in action, 25/02/2010, [VOD Sound recording off-air] BBC Radio 4 Television: Title of broadcast, date of broadcast, station; e.g. In search of medieval Britain: Heartlands, 23/04/2010, BBC4 21

22 If you have watched a recording of the show provided through the VOD service or a DVD recording, add [VOD recording off-air] or [DVD off-air] as appropriate, e.g. Criminal law, 18/11/2006, [DVD off-air] ITV3 Feature films / training films: Title, year of release, [format], director / presenter, production company; e.g. Property, 2009, [DVD], Lucinda Acland, Legal Network Television Filmed lectures: Title, date of lecture, [format], lecturer; e.g. Confession and identification evidence, 17/02/2010, [VOD Off-air], Bob Hoskins If you watch / listen to a broadcast via a service such as iplayer, use the original date of broadcast. Personal communications If you have conducted empirical research as part of your work and need to quote from a personal communication use this style. Name of person, role of person, form of communication, date of communication [personal communication]; e.g. Table of Cases L Klaff, Senior Lecturer Sheffield Hallam University, Phone call, 26/04/2010 [personal communication] Give a list of cases after your bibliography, starting on a new page. List the cases alphabetically by name. Note: if you have used a database to access case reports, list the details of the cases as detailed below. Do not give the address of the item(s) from the database. The case below is an example of a case with a neutral citation and a citation from the ICLR Law Reports. OBG Ltd and another v Allan and others Douglas and others v Hello! Ltd and others (No 3) Mainstream Properties Ltd v Young [2007] UKHL 21, [2008] 1 AC 1 For pre-2001 cases you will only need to list the report(s) Pepper (Inspector of Taxes) v Hart [1993] AC 593 (HL) In the case where there is no neutral citation, indicate the court in brackets, e.g. (HL) for House of Lords, (QB) for Queen's Bench. 22

23 Table of European Cases If you have referred to European cases, list them after the UK cases in a separate list. European cases are cited as follows: European Court of Justice and General Court Case 151/73 Ireland v Council [1974] 1 CMLR 429 Joined Cases C-430 & 431/93 Jereon van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705 Case 240/83 Procureur de la République v ADBHU [1985] ECR 531 Where possible cite the official reports, the European Court Reports (ECR). If an ECR report is unavailable, the second best report is usually the Common Market Law Reports (CMLR). The Law Reports, the Weekly Law Reports or the All England Reports can also be cited. For an unreported case, cite the relevant notice in the Official Journal (OJ). If not yet reported in the OJ, then cite the case number, case name, court, and date of judgment. If you wish to refer to the Opinion of the Advocate General in a case, simply add 'Opinion of AG {name}' after the case details. European Commission competition decisions Aluminium Cartel [1985] OJ L92/1 European Commission Merger Task-Force/ Competition Directorate Alcatel/Telettra (Case IV/M042) Commission Decision 91/251/EEC [1991] OJ L122/48 European Court of Human Rights Cite the official reports or the European Human Rights Reports, using one or the other consistently. Plattform Ärtze für das Leben v Austria (1988) Series A no 139 Young, James and Webster v UK (1982) 4 EHRR 38 Table of Statutes Give a list of statutes after your table of cases, starting on a new page. Statutes should be listed alphabetically by short title and year. Example: Human Rights Act 1998 Legal Services Act 2007 The Sale and Supply of Goods Act

24 Table of EU legislation If you need to refer to EC legislation, do so in a list after the Table of Statutes. Provide the legislation type, number and title, then publication details from the Official Journal (OJ). Order the list by year then number. Council Regulation (EC) 1984/2003 of 8 April 2003 introducing a system for the statistical monitoring of trade in bluefin tuna, swordfish and big eye tuna within the Community [2003] OJ L295/1 To refer to a treaty give its name and OJ reference, as in this example from the OSCOLA document: Consolidated Version Further help You can get more help with referencing from the following:- the referencing pages on Shuspace the SHU referencing wiki- the Learning Centre Helpdesks 24

25 LECTURE TOPICS LECTURE 1 Brief lecture outline. Methods of Trading; Company Formation & Consequences of incorporation There will be a brief introduction to the key aspects of the module in this lecture. The main (not only) types of trading organisations in the UK are: sole traders partnerships (general and limited) limited liability partnerships limited liability companies (this area will be the main focus of this module) The Main Differences Sole Traders The majority of businesses in the UK operate as sole traders and that sole trader is personally responsible for any business debts. There is no legal separation between personal and business assets. A sole trader can keep his/her assets secret (apart from to Her Majesty s Revenue and Customs (HMRC))! Partnerships Covered by the Partnership Act 1890, a partnership is responsible for its own debts and partners are responsible for each other s debts in respect of the partnership business (joint and several liability). The accounts do not need to be disclosed. In addition: a partnership is created by agreement (not necessarily in writing) each partner is an agent of the partnership it does not have legal personality (but does in Scotland) every partner has an equal say in the management (unless otherwise agreed) Note - the Limited Partnership Act 1907 provided for a hybrid form of partnership but these are not common. Limited Liability Partnerships The Limited Liability Partnership Act 2000 came into force on 5 th April After a slow take up of this new business association it has become more popular; by April 2011 there were 43,224 LLP s. The difference between a LLP and a general partnership is that, once registered with the registrar of companies, it attains status as a separate legal personality. Consequently the personal and business assets and liabilities of the partners and LLP are separate. Limited Liability Companies These are created under provisions of the Companies Act 2006 by registration of documents with the registrar of companies. There are approximately 2.4m registered companies in Great Britain. When a company is incorporated, it gains a legal personality separate to any human individuals associated with it. Most importantly members are not normally responsible for the company s debts. 25

26 In addition: there are considerable formalities associated with forming a company a company can own property, sue and be sued in its own name it does not have a maximum number of members its management is delegated to directors it has perpetual succession companies can give floating charges (a form of security for indebtedness) A limited liability company is owned by its members (shareholders in a company limited by shares). The impact of the EU Note that in recent years the European Company (Societas Europaea (SE)) has come into being (since 8 th Oct 2004) although there is still little take up in the domestically; only 24 had been registered in Great Britain by March 2010 and only 431 across the whole of Europe. European Legislation for a new type of European private company, called the Societas Privata Europaea (SPE), was planned to be set up for 1 st July 2010 but this has still yet to come into force at the time of writing this manual. Classification of Companies There are essentially two types: PUBLIC limited companies normally written plc after the company name PRIVATE limited companies - normally written Limited or Ltd after the company name Most trading companies in the UK (over 2.1m) are Private Limited Companies (limited by shares) whereas Public companies represent only about 11,500. However plc s are often large or extremely large organisations with huge turnovers, employing thousands of people. A company can change from Public to Private, or vice-versa, governed by Part 7 CA 06. Companies are either limited by shares (established since i.e. their liability is limited to the value of the share value) or by a separate type of company which is limited by guarantee. There are unlimited companies (not common), Community Interest Companies (e.g. Figment Theatre and see s.35 CA 06) and listed companies those who are quoted on a recognised stock exchange. FORMATION OF A COMPANY This is governed by ss.7-16 Companies Act 2006 and administered by Companies House in Cardiff and the registrar of companies. The formalities of forming a company are explained at: The key constitutional document is now the Articles of Association (s.18 CA 06) which contains internal rules on how the company is to be run. The Memorandum of Association (ss.7 and 8 CA 06) is now a simple statement (authenticated by each subscriber) of: intent to form a company agreement to become members and take at least one share each. 26

27 It will contain the name of the company, its registered office, its purpose and liability. These areas will be covered in detail in later lectures. Once formalities are complete, the Registrar will issue a certificate of incorporation (ss.15-16). There are restrictions on the names a company can choose (Part 5 CA 06) and complaints about the use of a name can be made to the Company Names Adjudicator. Companies previously set up, but no longer trading, can also be bought off the shelf and effectively reused by a newly forming company. Core Text Books: Alan Dignam and John Lowry, Company Law, (7 th edn, OUP 2012) Ch 1 & 2 Stephen Mayson, Derek French and Christopher Ryan, Mayson French & Ryan on Company Law (29th edn, OUP 2012) Ch 1 & 5 27

28 LECTURE 2 & 3 Brief lecture outline. Separate legal personality and lifting the veil of incorporation The doctrine of separate legal personality has long been regarded as a cornerstone of English law. 2 A company is a separate legal entity from the people who make up the company and this is said to create a veil between the company and its other constituents (either human or corporate). Therefore, an incorporated company has separate legal personality from its members, directors, employees and it is a separate legal entity from any subsidiary company, even if it owns 100% of that subsidiary s shares! Whilst this is the general rule, this metaphorical veil can be lifted by exception under common law, equity or statute. Separate Legal Personality and Limited liability Limited liability is not new; it was established by the Limited Liability Act Significantly this was extended by the case of Salomon v A Salomon & Co Ltd [1897] AC 22 (HL). This case is the most important case in company law and must be understood (the full case is on the Blackboard site). This case was significant because it extended the principle of separate legal personality to essentially one-man companies. Effects of Separate Legal Personality In Salomon, the decision not to lift the veil of incorporation worked to the advantage of the person who effectively owned the business, but this is not always the case. The following cases demonstrate the varying outcomes for the individuals involved: Lee v Lee s Air Farming [1961] AC 12 (PC) Macaura v Northern Assurance Co Ltd [1925] AC 619 (HL) The general rule (if indeed there is one) is that the courts are unwilling to lift the veil of incorporation to hold individuals to account. The exceptions to this general rule arguably do not create a consistent principle, and the decision in Salomon still holds centre stage in legal decisions in this area. The Exceptions Statutory lifting of the Veil There are too many to list here but Lord Diplock in Dimbleby & Sons v National Union of Journalists [1984] 1 All ER 751 (HL) 758 said that any intention to lift the veil should be expressed in clear unequivocal language. Examples Various Tax legislation; Insolvency Act ss.213 Wrongful Trading and s.214 Fraudulent Trading; Company Directors Disqualification Act 1986 s.6 - Duty of court to disqualify unfit directors of insolvent companies; Companies Act 2006 s Criminal consequences of failure to make required disclosure (e.g. using inaccurate company name); Companies Act 2006 s 156(7) Offence to trade more than 3 months with less than minimum number of directors; Companies Act 2006 s 767(3) Doing business without a trading certificate. 2 J P Lowry, Lifting the Corporate Veil [1993] JBL 41,