The Interrelationship between the Derivative Action and the Unfair Prejudice Remedy
The Interrelationship between the Derivative Action and the Unfair Prejudice Remedy
This chapter looks into the interrelationship between the Derivative Action and the Unfair Prejudice Remedy. Should the derivative action be dispensed with in favour of a single form of action, making identification of the type of wrong less significant? Alternatively, if both forms of action should be retained, should the derivative action be applicable to corporate wrongs and the unfairly prejudicial conduct action solely reserved for personal wrongs? Section 8.2 examines the history of s 994 of CA 2006. Subsequently, the arguments of assimilating the derivative and the unfair prejudice remedy into a single provision are assessed. Section 8.3 evaluates the merits of the demarcation of the two remedies. As will be seen, the assimilation of these two remedies should be resisted. Accordingly, section 8.4 explores the measures that can be introduced to clarify and simplify the interaction between the two remedies. Section 8.5 concludes.
Keywords: assimilating, demarcation, clarify interaction
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