Judgment was given yesterday in Rolfe v Rolfe [2010] EWHC 244 (Ch), a case concerning the operation of the so-called Re Duomatic principle. This principle takes it name from the decision of Buckley J. in Re Duomatic Ltd. [1969] 2 Ch 365, in which his Lordship stated (p. 373): [W]here it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be".
In Rolfe several arguments were advanced with regard to the Re Duomatic principle, in response to which the trial judge observed (paras. [40] to [43]):
... in my judgment if an individual who holds some shares for himself and other shares as a trustee or executor has expressed assent, he is not to be taken to have given that assent in respect of the shares held as a trustee or executor if he did not intend or purport to be making a decision in relation to those shares ...
... I do not accept that a shareholder's mere internal decision can of itself constitute assent for Duomatic purposes ... for a mere internal decision, unaccompanied by outward manifestation or acquiescence, to be enough would, as it seems to me, give rise to unacceptable uncertainty and, potentially, provide opportunities for abuse ... In my judgment, there must be material from which an observer could discern or (as in the case of acquiescence) infer assent. The law applies an objective test in other contexts: for example, when determining whether a contract has been formed. An objective approach must, I think, also have a role with the Duomatic principle ...
... I am willing to assume, without deciding, that the assent of the beneficial owners of a share will meet Duomatic requirements ... Whether or not, however, the assent of all the beneficial owners of a share will suffice, I do not think that the assent of just one of a number of such owners normally will".
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