On 26 February 2016, the Commercial Law Centre at Harris Manchester College hosted the launch of an important new book on agency law, 'Agency Law in Commercial Practice', edited by Danny Busch, Laura Macgregor and Peter Watts.
The book is a collection of essays by leading scholars from around the world, analysing abstract agency law concepts and testing them in specific commercial situations. The launch was attended by many of the authors included in the book, as well as other academics, practitioners and judges.
At the launch, the three editors of the book presented their chapters. Professor Danny Busch’s chapter is entitled 'Agency and principal dealing under the Markets in Financial Instruments Directive'. His thesis was that the differences in practice between situations in which an investment firm acts as agent in executing transactions, and those where it acts as a principal, are small and not necessarily appreciated by the clients, yet the differences in regulatory duties (and the resulting levels of client protection) are undesirably great. David Cabrelli commented on the paper, focusing particularly on the interrelationship between private law and public regulation which is highlighted by these issues.
The second presentation was by Professor Laura Macgregor, whose chapter considers the effect of the Insurance Act 2015 (coming into force in August 2016) on the imputation to the principal of knowledge of an agent. Under the present regime (governed by the Marine Insurance Act 1906) there was imputation of knowledge only in relation to certain types of agent. The new regime appears to abandon the agency reasoning, while extending imputation in practice, particularly by providing that the insured ought to know what would reasonably have been revealed by a reasonable search of information available to him, including information held by an agent (Insurance Act 2015 section 14(6)). This, Professor Macgregor comments, seems to contradict the purpose of the legislation, which was to rebalance the obligations in the insurer/insured relationship in favour of the insured. Raymond Cox QC of Fountain Court Chambers, in commenting on the paper, picked up this theme, and explored further the practical consequences of section 14(6).
Professor Peter Watts, in the third presentation, considered the extent to which directors are agents of the company. He focused on three areas: first, the effect of various decisions of the House of Lords and the Supreme Court (including the recent judgment in Jetivia v Bilta) on the relationship between the rules of attribution and those of agency. Second, Professor Watts considered whether a company can combine with its directors to commit an unlawful act, leading to liability for conspiracy to injure by unlawful means. Finally, the presentation addressed whether directors owe a duty to creditors in the twilight period before insolvency; Professor Watts’ view was that there are problems with such a duty. In his comment, Professor Paul Davies took issue with this and made the argument for the utility of such a duty.
Each paper was followed by discussion from the floor, chaired by Dr Thomas Krebs (Brasenose College) who is a contributor to the book.