UK: Scotland: court agrees that leave in derivative proceedings should be granted

Judgment was given today in Wishart v Castlecroft Securities Ltd. [2009] CSIH 65. This is an important decision of the Court of Session (Inner House) exploring the operation in Scotland of the statutory derivative action introduced by Sections 265 to 269 of the Companies Act (2006). It is the first time the new regime has been considered at appellate level in Scotland. Indeed, the equivalent English proceedings - Sections 260 to 264 - have thus far been considered only at first instance (see, e.g., Mission Capital Plc v. Sinclair [2008] EWHC 1339 (Ch), Franbar Holdings Ltd v Patel [2008] EWHC 1534 (Ch) and Stimpson v Southern Landlords Association (21/5/2009, ChD)). 

Lord Reed delivered the opinion of the court in Wishart and, whilst agreeing with the Lord Ordinary (in [2009] CSOH 20) that leave should be granted, found that the Lord Ordinary's approach to the granting of leave to raise derivative proceedings was, in some respects, erroneous. 

Wishart is, I believe, the first decision in Scotland and England in which leave has been granted. For further discussion see this post on the Edinburgh Centre for Commercial Law Blog.