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The concept of business judgment

Published online by Cambridge University Press:  11 December 2018

Andrew Keay  and
Joan Loughrey
Andrew Keay
Affiliation:
Centre for Business Law and Practice, School of Law, University of Leeds, Leeds, UK
Joan Loughrey*
Affiliation:
Centre for Business Law and Practice, School of Law, University of Leeds, Leeds, UK
*
*Corresponding author. Email: [email protected]
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Abstract

Categorising something as a business judgment can provide directors with a powerful shield from accountability. It has been said that the courts in England and Wales defer to directors’ business judgments and directors’ decisions are protected from review in other jurisdictions by a business judgment rule. Yet what a business judgment is has never been addressed, and so precisely what is being protected, and why, is unclear. This paper analyses case law in England and Wales and key Australian and US cases to answer this question. It argues that the courts use the term judgment in two senses: an ability, and a decision sense, and that business judgment in both senses can be linked to Knight's concept of entrepreneurial judgment, and directors’ wealth creation function. Conversely, decisions that are linked to directors’ corporate governance function and are less easy to categorise as entrepreneurial are less likely to be viewed as business judgments.

Keywords

business judgmentdirectors' dutiesentrepreneur
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 1 , March 2019 , pp. 36 - 55
Copyright
Copyright © The Society of Legal Scholars 2018 

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Footnotes

†

This paper is part of an AHRC funded project on Business Judgment and the Courts (Project Number: AH/N008863/1), and we are grateful to the funders. We would like to thank Dr Daniel Attenborough, Professor Terry McNulty and the anonymous referees for their very helpful comments, and Dr Francis Okanigbuan for his research assistance. Earlier versions of this paper have been presented at the SLSA and the SLS annual conference in 2017, when it was short-listed for the Best Paper Prize, and also at public lectures at Adelaide, Melbourne and ANU and we are grateful for the constructive feedback received.

References

1 A classic instance is Enron (at one time the seventh largest corporation in the US) which collapsed in 2001 resulting in shareholders, employees, creditors and others losing huge amounts of money.

2 One leading reason is that judges wish to avoid ‘hindsight bias’, namely ‘the tendency of decision-makers to attach an excessively high probability to an event simply because it ended up occurring’: Jolls, C, Sunstein, C and Thaler, R ‘A behavioral approach to law and rconomics’ (1998) 50 Stanford Law Review 1471 at 1523CrossRefGoogle Scholar. Also see Parkinson, J Corporate Power and Responsibility (Oxford: Oxford University Press, 1993) p 94Google Scholar.

3 For example see Hampson v Price's Patent Candle Co (1876) 45 LJ Ch 437Google Scholar; Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance Oil NL) (1967) 121 CLR 483 at 493Google Scholar; Howard Smith Ltd v Ampol Petroleum [1974] AC 821; Re Simasko Productions Co (1985) 47 Bankr 444Google Scholar; Re Elgindata Ltd [1991] BCLC 959 at 993; Circle Petroleum (Qld) Pty Ltd v Greenslade [1998] 16 ACLC 1577Google Scholar. For a discussion see A Tunc ‘The judge and the business man’ (1986) LQR 549.

4 On social practices acquiring rule-like status see further Meyer, J and Rowan, B ‘Institutionalized organizations: formal structure as myth and ceremony’ (1977) 83 American Journal of Sociology 343CrossRefGoogle Scholar.

5 See for example Howard Smith v Ampol Petroleum [1974] 1 All ER 821 at 835 (proper purposes); Devlin v Slough Estates Ltd [1983] BCLC 497 at 503–504 (derivative action); Birdi v Specsavers Optical Group Ltd [2015] EWHC 2870 (Ch) at [246] (unfair prejudice).

6 Though some have faced securities litigation: Moore, M ‘Redressing risk oversight failure in UK and US listed companies: lessons from the RBS and Citigroup litigation’ (2017) 18(4) EBOR 733Google Scholar.

7 Roberts, J, McNulty, T and Stiles, P ‘Beyond agency conceptions of the work of the non-executive director: creating accountability in the boardroom’ (2005) 16 British Journal of Management S5CrossRefGoogle Scholar; Moore, M Corporate Governance in the Shadow of the State (Oxford: Hart, 2013) p 7Google Scholar; Keay, A Board Accountability in Corporate Governance (Abingdon: Routledge, 2015) pp 95–102CrossRefGoogle Scholar.

8 For example the Australian Institute of Company Directors resisted the introduction of integrated corporate reporting because they were unsure whether decisions on the content of those reports would be business judgments covered by the BJR: Response to IIRC Consultation on Integrated Reporting (July 2013).

9 Devlin v Slough Estates Ltd [1983] BCLC 497 at 503–504.

10 For similar observations see S Cairns Changing the Culture of Financial Regulation: A Corporate Governance Approach unpublished PhD thesis (Liverpool University, September 2014) p 148.

11 Cobden Investments Ltd v RWM Langport Ltd [2008] EWHC 2810 (Ch) at [754].

12 [2011] EWHC 1524 (Comm) at [25].

13 [1974] AC 821 at 835.

14 Re City Equitable Fire Insurance Co Ltd [1925] Ch 407 at 408.

15 Tichy, N and Bennis, W ‘Making judgment calls’ (2007) 85 Harvard Business Review 94 at 95Google ScholarPubMed.

16 New Oxford Dictionary of English (Oxford: Oxford University Press, 2001) p 989Google Scholar.

17 Cambridge Dictionary at http://dictionary.cambridge.org/dictionary/english/judgment (accessed 4 November 2018). Also see G Shaw and K Locke ‘Using fiction to develop managerial judgment’ (1993) 17 Journal of Management Education 349 at 352.

18 Kingsbury, F ‘Business judgment and the business curriculum’ (1922) 30 Journal of Political Economy 375 at 376CrossRefGoogle Scholar. Also see Shaw and Locke, ibid, at 353; Clarke, J and Holt, R ‘Reflective judgement: understanding entrepreneurship as ethical practice’ (2010) 94 Journal of Business Ethics 317 at 320CrossRefGoogle Scholar.

19 [2001] 1 BCLC 275 at 306.

20 [2015] EWHC 2870 (Ch) at [344].

21 [1991] BCLC 959 at 993–994.

22 [2012] Ch 613.

23 Ibid, at [167].

24 Ibid, at [205].

25 [2004] 2 BCLC 145 at [58].

26 [2013] EWHC 680 (Ch) at [154].

27 [1901] AC 477 at 493.

28 See also Re Lands Allotment Company [1894] 1 Ch 616 at 637; Re County Marine Insurance Co (1870–71) LR 6 Ch App 104 at 119–120.

29 [2013] EWHC 2060 (Comm) at [48].

30 [1887] LR 36 Ch D 787 at 802.

31 [2007] 2 BCLC 287 at [135].

32 See for example Veasey, N ‘New insights into judicial deference to directors’ business decisions: should we trust the courts’ (1983–84) 39 Business Lawyer 1461 at 1464Google Scholar; Rosenberg, D ‘Supplying the adverb: the future of corporate risk-taking and the business judgment rule’ (2009) 6 Berkeley Business Law Journal 216 at 217Google Scholar.

33 663 A 2d 1134 (1994).

34 907 A 2d 693 (2005) at 748.

35 919 A 2d 563 (2007).

36 (2016) 111 ACSR 427.

37 Ibid, at [245].

38 J Told ‘Business judgment rule: a generally applicable principle?’ [2015] EBLR 713 at 715.

39 For example see ASIC v Adler (2002) 41 ACSR 72; ASIC v Rich [2009] NSWSC 1229.

40 In re Citigroup Inc 964 A 2d 106 (2009) at 120; ASIC v Adler (2002) 41 ACSR 2Google Scholar.

41 Rales v Blasband 634 A 2d 927 at 933 (1993); ASIC v Rich [2003] NSWSC 85.

42 [2009] EWHC 176 (Ch).

43 Ibid, at [33].

44 [2008] EWHC 2810 (Ch) at [498].

45 [2006] EWHC 1407 (Ch) at [53].

46 1993] BCLC 360 at 366. Also see Re Macro (Ipswich) Ltd [1996] 1 WLR 145, decided on a similar basis.

47 [1999] 2 BCLC 30 at 66.

48 [2004] EWHC 933 (Ch), [2006] BCC 725 at [157].

49 [1996] 2 BCLC 477.

50 Unocal Corp v Mesa Petroleum 493 A 2d 946 (1985) at 955.

51 In re Caremark International 698 A 2d 959 (1996) at 970.

52 Cede and Co v Technicolor Inc 634 A 2d 245 (1993).

53 Brehm v Eisner 746 A 2d 244 (2000). It has been argued that English courts also focus on process when assessing whether directors have breached their duty of care: Worthington, S ‘The duty to monitor: a modern view of the director's duty of care’ in Patfield, F (ed) Perspectives on Company Law: 2 (London: Kluwer Law, 1997) p 97Google Scholar.

54 [2011] 1 BCLC 498.

55 [2010] 1 BCLC 367 at [96].

56 [1983] Ch 258 at 267.

57 ‘Governance and the Role of Boards’ 3 November 2015, p 3 at https://www.bankofengland.co.uk/speech/2015/governance-and-the-role-of-boards (last accessed 4 November 2018).

58 Tochy and Bennis, above n 15, p 94.

59 Ibid, p 95.

60 Ibid, p 95ff.

61 Pettigrew, A ‘Studying strategic choice and strategic change. A comment on Mintzberg and Waters: “Does decision get in the way?”’ (1990) 11 Organization Science 6CrossRefGoogle Scholar, cited in McNulty, T and Pettigrew, A ‘Strategists on the board’ (1999) 20 Organization Science 47 at 58Google Scholar.

62 McNulty and Pettigrew, ibid, at 58.

63 [1871–1872] LR 5 HL 480.

64 Ibid, at 495–496. See also Re Brazilian Rubber Plantation and Estates Ltd [1911] 1 Ch 425 at 438; Re Brian D Pierson (Contractors) Ltd [2001] 1 BCLC 275 at 306.

65 [1998] 1 BCLC 218 at 228.

66 [2009] EWHC 2893 (Ch) at [6].

67 (1995) 16 ACSR 607 at 658 (Clarke and Sheller JJA).

68 Ibid, at 664.

69 FRC UK Code of Corporate Governance (2016) Supporting Principle to Principle A.1.

70 Standards for the Board: Improving the Effectiveness of your Board (London, 2001) p 4Google Scholar.

71 [2009] NSWSC 1229 at [7273] quoting Redmond, P ‘Safe harbours or sleepy hollows: does Australia need a statutory business judgment rule?’ in Ramsay, I (ed) Corporate Governance the Duties of Company Directors (Melbourne: Centre for Corporate Law and Securities Regulation, 1997) p 195Google Scholar.

72 964 A 2d 106 (2009).

73 In Re Macro (Ipswich) Ltd [1994] BCC 781 at 833.

74 See F Gevurtz ‘The business judgment rule: meaningless verbiage or misguided notion?’ (1994) 67 Southern California Law Review 287 at 307–309, though he disagrees.

75 The Law Commission Fiduciary Duties of Investment Intermediaries Law Com No 350 HC 368 (30 June 2014) p 95.

76 LS Sealy ‘The director as trustee’ (1967) CLJ 83 at 89.

77 In re Caremark International 698 A 2d 959 (1996).

78 ‘Conference panel discussion: the business judgment rule’ (1984) 45 Ohio State Law Journal 629 at 630 (Tamar Frankel)Google Scholar.

79 M Eisenberg ‘The duty of care and the business judgment rule in American corporate law’ (1997) CFLICR 185.

80 See for example Cobden Investments Ltd v RWM Langport Ltd [2008] EWHC 2810 (Ch); Moxon v Litchfield [2013] EWHC 3957 (Ch); ARB International Ltd v Baillie [2013] EWHC 2060 (Comm).

81 Oxford English Dictionary at http://www.oed.com/view/Entry/37081?redirectedFrom=commercial#eid (accessed 31 July 2017).

82 Oxford English Dictionary at http://www.oed.com/view/Entry/25229?redirectedFrom=business#eid (accessed 31 July 2017).

83 964 A 2d 106 (2009) at 126.

84 621 F Supp 1252 (1985 US Dist Ct SD New York).

85 [2009] NSWSC 1229 at [7272].

86 F&C Alternative Investments (Holdings) Ltd v Barthelemy [2011] EWHC 1731 (Ch) at [167].

87 Oak Investment Partners XII v Boughtwood [2009] EWHC 176 (Ch) at [33].

88 [1925] Ch 407 at 427

89 [2009] NSWSC 1229 at [7273] quoting Redmond, above n 71, p 195. These are also business judgments in the US: Zapata Corp v Maldonado 430 A 2d 799 at 782 (1981); In re Walt Disney Co 907 A 2d 693 (2005).

90 ‘Company directors and officers: indemnification, relief and insurance’ Report No 10 (1990), para 81.

91 [2009] NSWSC 1229 at [7278].

92 Kershaw, D Company Law in Context: Text and Materials (Oxford: Oxford University Press, 2nd edn, 2012) p 410Google Scholar.

93 In re Caremark International 698 A 2d 959 (1996) at [10]; see also S Bainbridge ‘Caremark and enterprise risk management’ (2009) 34 Journal of Corporations Law 967 at 986.

94 Stone v Ritter 911 A 2d 362 (Del 2006).

95 Graham v Allis–Chalmers Manufacturing Company 188 A2d at 130; In re Caremark International, Inc. Derivative Litigation, 698 A 2d 959 (Del Ch 1996); Stone v Ritter 911 A 2d 362 (Del 2006). See also ALI Principles of Corporate Governance Analysis and Recommendations (1994) (March 2017 update) Comment to § 4.01(c) at para (g).

96 [2013] EWHC 2060 (Comm).

97 Ibid, at [53].

98 Ibid, at [55].

99 Secretary of State for Trade and Industry v Baker [1999] 1 BCLC 433.

100 Ibid, at 517–519.

101 Ibid, at 522–524.

102 Ibid, at 528.

103 Ibid, at 497.

104 Ibid.

105 Loughrey, J ‘The director's duty of care and skill and the financial crisis’ in Directors Duties and Shareholder Litigation After the Financial Crisis (Cheltenham: Edward Elgar, 2012) p 23CrossRefGoogle Scholar.

106 [1925] Ch 407 at 409.

107 Parkinson, above n 2, p 112.

108 [2009] BCC 37 at [268].

109 [2010] 1 BCLC 367 at [96].

110 [2013] EWHC 2060 (Comm).

111 Ibid, at [51].

112 [2011] EWHC 2301 (Ch) at [92].

113 [1994] 1 BCLC 655 at 660.

114 Ibid.

115 Ibid, at 559–660.

116 [2011] EWHC 2301 (Ch) at [83], citing Penningon, R Pennington's Company Law (Oxford: Oxford University Press, 8th edn, 2001) pp 147–148Google Scholar.

117 ‘Company directors and officers: indemnification, relief and insurance’, above n 90, at para 81.

118 Sealy, LS ‘Bona fides and “proper purposes” in corporate decisions’ (1989) 15 Mon ULR 265 at 276Google Scholar. See for example Howard Smith v Ampol [1974] AC 821; Eclairs Group Limited v JKX Oil & Gas Plc [2015] UKSC 71.

119 Text, above n 63.

120 See for example Velasco, J ‘A defense of the corporate law duty of care’ (2015) 40 Journal of Corporation Law 647 at 655Google Scholar.

121 Schumpeter, for example, focuses on entrepreneurial innovation: Schumpeter, J The Theory of Economic Development: An Inquiry into Profits, Capital, Credit, Interest, and the Business Cycle (Cambridge, Massachusetts: Harvard University Press, 1934) p 66Google Scholar; Kirzner on the ability of entrepreneurs to discover entrepreneurial opportunities: Kirzner, I Competition and Entrepreneurship (Chicago: University of Chicago Press, 1973)Google Scholar. See also S Alvarez and J Barney ‘Discovery and creation: alternative theories of entrepreneurial action’ (2007) Strategic Entrepreneurship Journal 11.

122 Knight, F Risk, Uncertainty, and Profit (Boston: Houghton Mifflin, 1921)Google Scholar. See also Cantillon, R Essai sur Le nature de commerce en général (London: Macmillan, 1931) pp 49–53Google Scholar, and the work building on Knight: C O'Kelley ‘The entrepreneur and the theory of the modern corporation’ (2006) The Journal of Corporation Law 753; O'Kelley, C ‘Berle and the entrepreneur’ (2010) 33 Seattle University Law Review 1141Google Scholar; Emmett, R ‘Frank H Knight on the “entrepreneur function” in modern enterprise’ (2011) 4 Seattle University Law Review 1139Google Scholar; O'Kelley, C ‘Coase, Knight, and the nexus of contracts theory of the firm: a reflection on reification, reality, and the corporation as entrepreneur surrogate’ (2012) 35 Seattle University Law Review 1247Google Scholar; Foss, N and Klein, P Organizing Entrepreneurial Judgment: A New Approach to the Firm (Cambridge: Cambridge University Press, 2012)CrossRefGoogle Scholar.

123 Foss, N and Klein, P ‘Introduction to a forum on the judgment-based approach to entrepreneurship: accomplishments, challenges, new directions’ (2015) 11 Journal of Institutional Economics 585 at 586CrossRefGoogle Scholar.

124 Knight, above n 122, p 270.

125 Knight distinguished between judgments dealing with risk and those dealing with uncertainty. However the term risk taking will suffice for the present discussion: see Knight, above n 122, pp 19–20. See also Belcher, A ‘Something distinctly not of this character: how Knightian uncertainty is relevant to corporate governance’ (2008) 28 Legal Studies 46 at 63–66CrossRefGoogle Scholar.

126 Cantillon, above n 122, pp 49–53.

127 E Fama ‘Agency problems and the theory of the firm’ (1980) 88 J Pol Econ 288 at 289–290. For further discussion see O'Kelley's work, above n 122.

128 Knight, above n 122, p 360. See discussion in O'Kelley (2010), above n 122, at 1149 and generally.

129 Cf Knight, above n 122, pp 293, 301, 309, who considers that risk is borne by shareholders and others. See also O'Kelley (2012), above n 122, at 1261–1264.

130 Knight, above n 122, p 271.

131 Smith, A The Wealth of Nations (New York: The Modern Library, 1994)Google Scholar Book 1 ch 2 p 15. See also O'Kelley (2010), above n 122, at 1142.

132 Schumpeter, above n 121, pp 76–78.

133 Coffee, J ‘Litigation and corporate governance: an essay on steering between Scylla and Charybdis’ (1984) 52 Georgetown Washington Law Review 789 at 802–803Google Scholar. See also Parkinson, above n 2, pp 65–67.

134 O'Kelley (2006), above n 122, at 772.

135 Brockhaus, R ‘Risk taking propensity of entrepreneurs’ (1980) 23 Academy of Management Journal 509Google Scholar; Zahra, S ‘Governance, ownership, and corporate entrepreneurship: the moderating impact of industry technological opportunities’ (1998) 39 Academy of Management Journal 1713Google Scholar; Busenitz, L and Barney, J ‘Differences between entrepreneurs and managers in large organizations: biases and heuristics in strategic decision-making’ (1997) 12 Journal of Business Venturing 9CrossRefGoogle Scholar.

136 Ibrahim, D ‘Intrapreneurship’ (2016) 73 Washington & Lee Law Review 1741 at 1772–1774Google Scholar.

137 Other mechanisms, such as the use of stock options to align directors’ and shareholder interests, may encourage risk taking that discounts the downside of decisions: Sandersand, W Hambrick, D ‘Swinging for the fences: the effects of CEO stock options on company risk taking and performance’ (2007) 50 Academy of Management Journal 1055CrossRefGoogle Scholar.

138 A Hicks ‘Corporate form: questioning the unsung hero’ (1997) JBL 306 at 316–317.

139 There may though be other reasons for protecting directors from liability that could support a different standard. See Riley, C ‘The company director's duty of care and skills: the case for an onerous but subjective standard’ (1999) 62 MLR 697CrossRefGoogle Scholar.

140 Knight, above n 122, pp 297–298.

141 Ibid.

142 Ibid, p 297, Knight describes the hired manager who is the ‘supreme head of the business’ as someone other than the directors.

143 Knight, above n 122, p 360. See discussion in O'Kelley (2010), above n 122, at 1149 and generally.

144 Davis, J, Schoorman, F and Donaldson, L ‘Toward a stewardship theory of management’ (1997) 22 The Academy of Management Review 20CrossRefGoogle Scholar.

145 Jensen, M and Meckling, W ‘Theory of the firm: managerial behavior, agency costs, and ownership structure’ (1976) 3 Journal of Financial Economics 305 at 313CrossRefGoogle Scholar.

146 Smith, above n 131, p 800.

147 Sealy, above n 76, at 91.

148 Re Hydrodan (Corby) Ltd (in liquidation) [1994] BCC 161 at 163; Secretary of State for Trade and Industry v Tjolle [1998] 1 BCLC 333; Secretary of State for Trade and Industry v Jones [1999] BCC 336 at 341. There is disagreement over whether shadow directors exercise sufficient control over the company to justify the imposition of the duty: Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch) at [1289] per Lewison J; Vivendi SA v Richards [2013] BCC 771 at [142] per Newey J.

149 [2010] UKSC 51 at [91].

150 Report of the Committee on the Financial Aspects of Corporate Governance (1992) para 2.5.

151 O'Kelley (2006), above n 122, at 770.

152 On shadow directors see above n 148.

153 Re Sports Management Group Ltd (In Liquidation) [2016] BPIR 1224 at [113].

154 Review of the Role and Effectiveness of Non-executive Directors (January 2003) para 1.12.

155 See Re Barings (No 5) [1999] 1 BCLC 433; AWA Ltd v Daniels (1992) 10 ACLC 933 at 1014.

156 Eisenberg, M The Structure of the Corporation-A Legal Analysis (Washington: Beard Books, 1976) pp 139–141Google Scholar; Parkinson, above n 2, p 57; Eisenberg, M ‘The board of directors and internal control’ (1997) 19 Cardozo Law Review 237Google Scholar. Not everyone agrees that a tension exists between these roles: Roberts, McNulty and Stiles, above n 7.

157 964 A 2d 106 (2009) at 126; Minstar Acquiring Corp v AMF Inc 621 F Supp 1252 (1985 US Dist Ct SD New York).

158 Knight, above n 122, p 292.

159 As recognised in Re Spectrum Plus Ltd [2005] 2 BCLC 269 at [95] (Lord Hope).

160 Knight, above n 122, p 298.

161 Ibid, p 291 and also p 297.

162 Ibid, p 291.

163 Ibid, pp 295–296.

164 Schumpeter, above n 121, p 20.

165 Re City Equitable Fire Insurance Co Ltd [1925] Ch 407 at 427.

166 [2011] FCA 717 at [16].

167 Cf McNulty and Pettigrew, above n 61.

168 Eisenberg (1997), above n 156, at 245–247.

169 BP Oil Disaster, see http://www.bbc.co.uk/news/special_reports/oil_disaster (last accessed 4 November 2018).

170 FRC Boards and Risk (2011) p 4; FRC Guidance on Risk Management, Internal Control and Related Financial and Business Reporting (September 2014) pp 2–3.

171 Crouhy, M, Galai, D and Mark, R The Essentials of Risk Management (New York: McGraw Hill, 2006) p 30Google Scholar cited in Bainbridge, above n 93, at 969.

172 Grimes v Donald 20 Del J Corp L 757 at 771 (Del Ch Jan 11 1995); ASIC v Fortescue Australian Securities Metals Group Ltd [2011] FCAFC 19, (2011) 81 ACSR 563.

173 Bainbridge, above, n 93, at 981 links these to monitoring (though see caveats at 984) but would argue that they should be protected by the BJR.