Abstract:
A company director’s duties of board collegiality are frequently talked about but very rarely litigated. This is probably because companies and their shareholders usually deal internally with breakdowns in board relationships, including through codes of conduct. In the Commonwealth, there are two strongly contrasting cases: Stobart Group Ltd v Tinkler [2019] EWHC 258 (Comm), and NRMA v Geeson [2001] NSWCA 343. This contribution to a recent festschrift for Francis Rose is a close critique of Stobart. The essay argues that the court over-judicialised the issue of board dissent and the extent to which a director can criticise colleagues outside the boardroom. In particular, the court was wrong to use the director’s duty of loyalty for dealing with this issue, at least where there can be no doubt that the disaffected director believes that he or she is acting in the interests of the shareholders. Executive directors, however, may find that employment law makes them less able to speak out than their non-executive colleagues.