Pey Woan Lee

A director's duty to confess: a matter of good faith?

I n common law jurisdictions, there has been considerable academic and judicial discussion of the duties of company directors generally. In contrast, relatively little ink has been spent on the specific duty, if any, of a company director to disclose his own misconduct (in the civil realm) to the company, even less so on the nature and basis of such a duty. This is unsurprising given the very restrictive approach to disclosure obligations in English law. Thus, while a director may in loose terms be said to be under a “duty” to disclose interests that conflict with the companys, such disclosure only serves the purpose of relieving him from liability, and failure to do so per se has not been regarded as an independent source of liability.

Exemplary Damages - Two Commonwealth Cases

T HE topic of exemplary damages has often been shrouded in controversy. Indeed, in some jurisdictions (such as England), the very award of such damages is confined to an extremely narrow compass (though cf. the recent House of Lords decision in Kuddus v. Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 A.C. 122). Although the jurisdiction to award such damages is broader in other Commonwealth jurisdictions, difficult issues remain, two of which were recently explored by the highest appellate courts in New Zealand and Canada, respectively.

Contract Modifications: Reflections on Two Commonwealth Cases

The pre-existing duty rule is said to have done the most in giving the doctrine of consideration a bad name.1 It stands for the orthodoxy that a promise to perform a pre-existing contractual duty is no consideration,2 but sits uneasily with other aspects of the consideration doctrine,3 and is routinely circumvented through a number of ‘avoidance techniques’.4 Since the English Court of Appeal’s decision in Williams v Roffey Bros & Nicholls (Contractors) Ltd,5 the rule appears to have been all but emaciated, prompting not only calls for the abolition of consideration in the context of contract modifications,6 but also in the more general context of contract formation.7 Indeed, two Commonwealth cases, namely, Antons Trawling Co Ltd v Smith8 and NAV Canada v Greater Frederiction Airport Authority Inc,9 have since taken a definitive step in that direction by holding that a promise to pay more for