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Company Law Reform Bill [HL]

moved Amendment No. 151A:"Page 68, line 33, leave out subsection (4)." The noble Lord said: I have already spoken to this amendment but I wish to respond to what the noble and learned Lord, Lord Goldsmith, said. I am slightly disappointed with his response to the points made by the Law Society. I think he should be aware, if he is not already, that the process by which the Law Society’s comments were arrived at, which both the noble Lord, Lord Freeman, and I have tried to articulate today—obviously not very well—was based on the considered view of a large number of serious practitioners of company law in the City of London. If I may say so with respect—which always means I disagree—to simply say, a little glibly, ““I disagree with the comments of the Law Society””, is to disagree with the considered view of people who will no doubt be engaged, if the fears of the noble Lord, Lord Freeman, are right, in significant litigation over the next few years in trying to interpret these points. To pick up on the detail, the noble and learned Lord’s best argument was when he quoted Clause 158, which relates to the duty to exercise reasonable care, skill and diligence. No one would disagree that any court interpreting what is meant by a duty to exercise reasonable care, skill and diligence would undoubtedly take into account the corpus of common law and equitable precedent going back over the years and the definitions of a number of the phrases used there. But he did not deal with the substantive points made by the noble Lord, Lord Freeman, and I in regard to Clauses 159, 160 and 161. Our fundamental point is that the common law and the equitable corpus of precedent are in conflict with the principles set out by those clauses. There is nothing wrong with that—