Day 083 - 06 Feb 95 - Page 12
1 over it so complete - that it is his alter ego. That is
2 the sort of case which was envisaged by Dunn, J. in B v.
3 B", which was a matrimonial case.
4
5 In that case, your Lordship may remember, in fact, the
6 Order was not made against the husband because, although he
7 controlled the shareholding of the company, there was an
8 independent minded board of directors who refused to
9 disclose the documents. Mr. Justice Dunn held that he did
10 not have power in the sense in which it is used in the
11 rule.
12
13 Then Lord Denning goes on: "Other cases can be envisaged
14 too". I do not think I need read the passage from the
15 Bingham Report. Can I take your Lordship over the page to
16 372? I am afraid the letter I have lost, but it is about
17 probably letter D, the paragraph beginning: "No doubt",
18 about halfway down the page. "No doubt, in many ordinary
19 circumstances, what the parent company requests is
20 automatically complied with by the subsidiary. Lord
21 Justice Brandon mentioned at the end of the argument the
22 question of 'group accounts'. The parent company probably
23 has the same auditors as its subsidiaries. If the parent
24 company calls for the accounts of its subsidiaries in order
25 to make up the group accounts, as a matter of practice the
26 subsidiaries or their auditors will hand them over at
27 once. That is all part of the ordinary working of
28 business".
29
30 My Lord, I would like, if I may, to add a gloss there for
31 reasons which will become apparent very shortly. It might
32 very well be in the case of the parent and a subsidiary
33 that the exchange of accounts, as it were, was, in fact, a
34 matter of contractual obligation as between the subsidiary
35 and the parent company, it might be said. My Lord, then
36 perhaps last -----
37
38 MR. JUSTICE BELL: What does the Master of the Rolls say about
39 that situation?
40
41 MR. RAMPTON: He does not say anything, nor does anybody in the
42 context of this particular case about contractual
43 obligation.
44
45 MR. JUSTICE BELL: No. What does he say about the situation
46 where a subsidiary would automatically comply with a
47 request?
48
49 MR. RAMPTON: He says that may be so, as a matter of practice,
50 but it does not mean that, as your Lordship will see, the
51 words used by Lord Justice Shaw later on and the words used
52 by Lord Diplock in the House of Lords, that the parent has
53 a present legally enforceable right to demand either the
54 document or its inspection.
55
56 My Lord, then over the page at 373 on the other side of
57 this photocopied page, the passage in quotes which is,
58 I think, a quotation from an affidavit in the case by
59 a Mr. Whitehead:
60
