THE LEGAL CONTROL OF DIRECTORS’ REMUNERATION WITHIN THE UNITED KINGDOM
THE BRIEF
“The UK has devoted considerable regulatory resources to seeking to limit the growth of directors’ remuneration, despite this being a
very challenging goal within the constraints of a free market economy. Despite this the exercise must be deemed a failure, both in
terms of achieving this goal and the UK’s own international competitiveness as a regulatory regime.”
Critically analyse this statement. You should evaluate relevant UK legal doctrine and procedures in their theoretical, doctrinal and
international context.
Importance
Please be note that
1.the reference should provide by OSCOLAR style
2.this assignment should consider in the concept of critical analyse in particular case law.
Books requires that it will useful for you
1.Principles of Modern Company law Nine edition page 383
2.Boyle& Birds’ Company Law Chapter 15 page 549
3.Sealy & Worthington’s Cases and Materials in Company law tenth edition page 261-277, especially 270-277
4.Company Law Alan Dignam& John Lowry 7th edition page 288, especially page 304
DIRECTORS’ REMUNERATION
BACKGROUND AND LEARNING OBJECTIVES
In this session we focus on directors’ remuneration. The subject of directors’ remuneration has become central to the corporate
governance debate and undoubtedly played a significant role in raising its prominence. The concept of directors’ remuneration sits ill
at ease alongside a range of company law assumptions, such as the scope of a director’s duties. It raises awkward questions as to the
reality of board accountability to shareholders which have wider ramifications. The crisis in the banking and financial services sector
has provided further impetus for reform in this area.
Your objectives for this session are to be able to:
(a) Analyse the legal and regulatory requirements which apply to directors’
remuneration;
(b) Evaluate the attempts to control directors’ remuneration in the light of relevant
academic theories and debate.
READING
Introduction:
Dignam, A. & J. Lowry, “Company Law” (Oxford: Oxford University Press, 2014), Ch. 13
Texts:
Birds, J. et al., “Boyle and Birds’ Company Law” (Bristol: Jordans, 2014), Ch. 15
Davies, P.L. and S. Worthington, “Gower and Davies’ Principles of Modern Company Law” (London: Sweet & Maxwell, 2012), Ch. 14
Kershaw. D., “Company Law in Context” (Oxford: Oxford University Press, 2012), Ch. 8
Further reading:
Cheffins, B., “Company Law” (Oxford: Oxford University Press, 1997), Ch. 14
Sealy, L & Worthington, S. “Cases and Materials in Company Law” (Oxford: Oxford University Press, 2013), Ch. 5
Cheffins, B.R. & R.S. Thomas, “Should shareholders have a greater say over executive pay: learning from US experience” (2001) 1 Journal
of Corporate Law Studies 277
Petrin, M. “Executive compensation in the UK: past, present and future” (2015) Company Lawyer 196
Villiers, C., “Executive pay: beyond control?” (1995) Legal Studies 260
LECTURE OUTLINE
[References to “Model Articles” are to the Companies (Model Articles) Regulations 2008, Sch. 1 Model Articles for Private Companies
Limited by Shares except where otherwise stated]
[NB We will not refer generally to Table A in this session other than by exception but you should be aware that at present the
overwhelming majority of companies are still likely to have Articles of Association which refer to various versions of Table A or its
predecessors, rather than the new Model Articles]
[NB We will not cover industry specific regulation, specifically that applicable to the financial services sector]
1. INTRODUCTION
(a) Origins of recent concerns
Statistical illustrations of international and UK issues:
– International: Graef Crystal (1991)
– US: Forbes Magazine (1991)
– UK: Management Today (1996)
– UK: Independent on Sunday (1996)
– UK: “Watching the World Pig of a Day for British Gas” (1995) Oil and Gas Journal http://www.ogj.com/articles/print/volume-
93/issue-24/in-this-issue/general-interest/watching-the-world-pig-of-a-day-for-british-gas.html.
Illustrations post-2008 banking crisis:
“Business as usual: top directors get 49 per cent pay rise” Independent 28.10.11, source Incomes Data Services
But consider further, e.g. Lloyds Banking Group Annual Report and Accounts 2010
(b) Economic arguments
Agency problems
Collective action problems
Government/ regulatory failure
(c) Moral arguments
Procedural v substantive justice?
Competing models of distributive justice?
John Rawls “A Theory of Justice” (1973)
Robert Nozick “Anarchy, State and Utopia” (1974)
Cheffins “Company Law, Theory, Structure and Operation” (Oxford, Clarendon, 1997), Chapters 3 and 14
2. ENTITLEMENT TO REMUNERATION
(a) No presumptive right to remuneration
Hutton v. West Cork Railway Co (1883) 23 ChD 654
Moriarty v. Regent’s Garage & Co [1921] 1 KB 423
Re Richmond Gate Property Co Ltd [1965] 1 WLR 335
Guinness plc v. Saunders [1990] 2 AC 663
(b) Problems of incorporating remuneration in Articles of Association
(i) Enforceability of statutory contract by directors?
Browne v. La Trinidad (1887) 37 ChD 1
Rayfield v. Hands [1960] Ch 1.
Swabey v. Port Darwin Gold Mining Co (1889) 1 Meg 385
Re Anglo-Austrian Printing & Publishing Union, Isaac’s Case [1892] 2 Ch. 158
Re T.N. Farrer Ltd [1937] Ch. 352
Guinness plc v. Saunders [1990] 2 AC 663
(ii) Nature of remuneration provided for in Articles?
Re New British Iron Co, ex parte Beckwith [1898] 1 Ch 324
(iii) Other?
(b) Approval of remuneration in accordance with the Articles of Association
(i) Distinction between fees and remuneration
McWilliam v. Guest [1942] AC 561
Hutton v. West Cork Railway Co (1883) 23 ChD 654
Re City Equitable Fire Insurance Co Ltd [1925] Ch 407
(ii) Approval procedures
Compare former Regs 82 and 84 Table A 1985
Re Duomatic Ltd [1969] 2 Ch 365
Reg. 19(2)(a), Model Articles
3. ENTITLEMENT TO OTHER FORMS OF PAYMENT
(a) Remuneration for other services
Reg. 19(2)(b), Model Articles
Reg. 19(5), Model Articles
See also Reg. 23(2)(b) and (5) Model Articles for Public Companies
(b) Expenses
s. 204 CA 2006
Reg. 20, Model Articles
See also Reg. 24, Model Articles for Public Companies
(c) Pensions, allowances, gratuities, benefits
s. 247 CA 2006
Reg. 19(3)(b), Model Articles
See also Reg. 23(3)(b), Model Articles for Public Companies
(d) Payments for loss of office
ss. 215 – 226 CA 2006
Definition: s. 215 CA 2006
Approval by members: ss. 217(1), 218 and 219 CA 2006
Small payments exception: s. 221 CA 2006
Consequences of breach: s. 222 CA 2006
Quoted companies: see s. 215(5) and 226D(6) CA 2006
(f) Exploitation of property, information or opportunity, interests in proposed transactions or arrangements, benefits from third
parties, substantial property transactions, loans, quasi-loans and credit transactions
See “Directors Duties”
4. CONTROLS OVER SIZE OF REMUNERATION
(a) Directors’ duties generally
See “Directors’ Duties”, especially ss. 172 and 174 CA 2006, also s. 214 IA 1986
Dryburgh v. Scotts Media Tax Ltd [2011] CSOH 147
(b) Disclosure
(i) Inspection of directors’ service contracts (and qualifying indemnity provisions)
ss. 227 – 229 CA 2006
ss. 237 – 238 CA 2006
(ii) Disclosure of information about directors’ benefits: remuneration, advances, credit and guarantees
ss. 412 – 413 CA 2006
Impact of the Large and Medium Sized Companies and Groups (Accounts and Reports)(Amendment) Regulations 2013, SI 2013/1981
Impact of the Companies, Partnerships and Groups (Accounts and Reports) Regs 2015, SI 2015/980
Large and Medium Sized Companies and Groups (Accounts and Reports) Regulations 2008, SI 2008/ 410, reg. 8 and Sch. 5
Provisions applying only to unquoted companies:
Details of highest paid director’s emoluments (Sch. 5, Part 2(2))
Excess retirement benefits of directors and past directors (Sch. 5, Part 2(3))
Compensation to directors for loss of office (Sch. 5, Part 2(4))
Sums paid to third parties in respect of directors’ services (Sch. 5, Part 2(5))
Provisions applying to quoted and unquoted companies:
Total amount of directors’ remuneration etc (Sch. 5, Part 1(1)
(iii) Disclosure of interests
See Directors Duties
(c) Shareholder approval of long-term service contracts
ss. 188 – 189 CA 2006
Bain v. The Rangers Football Club plc [2011] CSOH 158
(d) Shareholders’ remedies
Case law under s. 994 CA 2006
Re Cumana [1986] BCLC 430
Re a Company (No 00370 of 1987) ex parte Glossop [1988] BCLC 570
Re Sam Weller & Sons Ltd (Re a Company No 8213 of 1987) [1990] Ch 682
Re a Company, ex parte Burr [1992] BCLC 724
Re Saul D. Harrison & Sons plc [1995] 1 BCLC 14
Quinlan v. Essex Hinge Co. Ltd (1996) 2 BCLC 417
Re a Company (No. 004415 of 1996) [1997] 1 BCLC 479
Grace v. Biagioli etc [2006] BCC 85 (CA)
Re McCarthy Surfacing Ltd (2008) EWHC 2279 (Ch)
Other possibilities:
s. 260 CA 2006
s. 122 (1) (g) IA 2006
(e) Directors’ disqualification
Re Synthetic Technology Ltd [1993] BCC 549
Secretary of State v. Van Hengel [1995] 1 BCLC 545
5. LISTED COMPANIES
(a) Background
(i) The Cadbury Report
(ii) The Greenbury Study Group
(iii) The Hampel Committee
(iv) FRC Reviews
(v) DTI Consultation
DTI Consultation Document (URN 01/1400)
The Directors’ Remuneration Report Regs 2002 (now see (b) below)
Deloitte, “Report on the Impact of the Directors’ Remuneration Report Regulations 2002” (25th January 2005)
(vi) Responses to the banking crisis
[NB We will not cover industry specific regulation, specifically that applicable to the financial services sector]
(vii) Impact of the Enterprise and Regulatory Reform Act 2013
High Pay Commission “What are we paying for? Exploring executive pay and performance” (September 2011)
DBis “Executive Remuneration Discussion Paper” (September 2011)
(b) Additional disclosure and approval requirements
(i) The directors’ remuneration report
Preparation and approval by board:
s. 420(1) CA 2006
s. 422(1) CA 2006
Advisory shareholders’ resolution:
s. 439(1) CA 2006
s. 439(5) CA 2006
s. 440 CA 2006
Content:
s. 421 CA 2006
Large and Medium Sized Companies and Groups (Accounts and Reports) Regulations 2008, SI 2008/ 410, reg. 11 (as amended) and Sch. 8 (as
substituted by the Large and Medium Sized Companies and Groups (Accounts and Reports) (Amendment) Regulations 2013, SI 2013/1981, Reg.
4 Sch
– Annual statement
Sch. 8, Part 2(3)
– Annual report on remuneration
Subject to audit: Sch. 8, Part 5(41)
Single total figure of remuneration for each director (Sch. 8, Part 3, (4) – (12))
Total pension entitlements (Sch. 8, Part 3(13))
Scheme interests awarded during financial year (Sch. 8, Part 3(14))
Payments to past directors (Sch. 8, Part 3(15))
Payments for loss of office (Sch. 8, Part 3(16))
Statement of directors’ shareholding and share interests (Sch. 8, Part 3(17))
Not subject to audit: Sch. 8, Part 5(41)
Performance graph and table (Sch. 8, Part 3(18))
Percentage change in remuneration of director undertaking CEO role (Sch. 8, Part 3(19))
Relative importance of spend on pay (Sch. 8, Part 3(20))
Statement of implementation of remuneration policy in the following financial year (Sch.8, Part 3(21))
Consideration by directors of matters relating to directors’ remuneration (Sch.8, Part 3(22))
Statement of voting at general meeting (Sch.8, Part 3(23))
Revision:
s. 422A CA 2006
(ii) Directors’ remuneration policy
Preparation and approval:
s. 420(1) CA 2006
s. 439A(1) CA 2006
Content:
Large and Medium Sized Companies and Groups (Accounts and Reports) Regulations 2008, SI 2008/ 410, Sch. 8 (as substituted by the Large
and Medium Sized Companies and Groups (Accounts and Reports) (Amendment) Regulations 2013, SI 2013/1981, Reg. 4 Sch
Future policy table (Sch. 8, Part 4(25)-(28))
Approach to recruitment remuneration (Sch.8, Part 4(29)
Service contracts (Sch.8, Part 4(30) – (32))
Illustrations of application of remuneration policy (Sch. 8, Part4 (33) – (35))
Policy on payment for loss of office (Sch. 8, part 4(36)- (37))
Statement of consideration of employment conditions elsewhere in company (Sch. 8, Part4 (38)-(39))
Statement of consideration of shareholder views (40))
(c) Approval of remuneration payments and payments for loss of office
Limited applicability of general rules to quoted companies: see s. 215(5) and 226D(6) CA 2006
Consistency with approved directors’ remuneration policy or approval by members’ resolution:
s. 226B(1) CA 2006
s. 226C(1) CA 2006
Consequences of breach:
s. 226E(1) CA 2006
(d) The UK Corporate Governance Code 2014
(i) Context
Section D and Schedule A
See session on “Corporate Governance in Listed Companies”
(ii) Composition and role of remuneration committees
CP D2.1
CP D2.2
CP D2.3
Newcastle International Airports Ltd v. Eversheds LLP [2013] EWCA Civ 1514
(iii) Role of shareholders
CP D2.4
CP D2.3
(iv) Level of remuneration
Main Principle
Supporting Principles
CP D1.1
(v) Structure of remuneration
Sch. A
CP D1.3
(vi) Disclosure requirements
CP D2.1
CP D1.2
CP D2.1
(vii) Early termination
CP D1.4
(viii) Notice/ contract periods
CP D1.5
(ix) Clawback
CP D1.1
6. EU DEVELOPMENTS
(a) EC Commission Recommendation on Fostering an Appropriate Regime for the Remuneration of Directors of Listed Companies (14th
December 2004)
(b) EC Commission Recommendation 2005/162/EC on the role of non-executive or supervisory directors of listed companies and on the
committees of the (supervisory) board
(c) Commission Recommendation 2009/385/EC completing Recommendations 2004/913/EC and 2005/162/EC as regards the regime for the
remuneration of directors of listed companies (30 April 2009)