Introduction

The Cohen Committee, as long ago as 1945, designed what was to become a statutory remedy against the oppression of minority shareholders in the form of section 210 of the Companies Act 1948. The Cohen Committee took the view that just and equitable winding up, though it might be kept in reserve, was usually inappropriate and the derivative action was frequently unavailable owing to the restrictive nature of the Foss v. Harbottle rule. Even in the current law these observations remain essentially true. It has been seen that the Law Commission has undertaken a major reform of the derivative action by creating a new statutory derivative remedy. In the case of the minority shareholders' petition for a just and equitable winding up, it was recast by the House of Lords in 1971, and has since remained an alternative remedy with some attractive possibilities. In general, however, the courts in recent years have tended to adapt the unfair prejudice remedy to make it a more suitable remedy for aggrieved minority shareholders. It will be seen that this does not exclude resort to petitions seeking a final and equitable winding up, or indeed a petition which seeks at the outset to combine both remedies.

The Jenkins Committee, when it came to review the oppression remedy created by its predecessor, found its provisions restrictive in various respects. The Jenkins Committee's proposals for a new ‘unfair prejudice’ remedy were, after a long delay, implemented by section 75 of the Companies Act 1980.