Company Law Reform Bill [HL]

moved Amendment No. 466:"Page 310, line 18, leave out paragraph (b) and insert—" ““(b)   where the person making the bid is a body of persons, any director, officer or member of that body who caused the document to be published.”” The noble and learned Lord said: My Lords, in moving Amendment No. 466, which stands in the name of my noble friend Lord Sainsbury, I wish to speak also to government Amendments Nos. 470 and 474 and to Amendment No. 467. In Committee the noble Lords, Lord Hodgson and Lord Sharman, proposed amendments in relation to the proposed bid documentation offence at Clause 635, which was the subject of the previous debate. Certain of those matters are being pursued further today. If I understood the purpose behind those amendments correctly, they sought both to provide greater certainty as regards those potentially liable for the bid documentation offence and to narrow the scope of such persons. As I foreshadowed in what I said in the previous debate, we have reflected further on the scope of the bid documentation offence in the light of those amendments and those concerns. We have also discussed the coverage of the bid documentation offence with lawyers responsible for advising bidders on the preparation of offer and response documents. The present amendments result from those discussions and deliberations. Amendments Nos. 466, 470 and 474 seek to do two things. The first is to restrict liability for the offence in respect of offer documents to the bidder or any director, officer or member of the bidder who caused the bid document to be published. This has the important consequence of relieving employees and agents of the bidder from potential liability for the offence and the additional costs that might have arisen from this; for example, to professional advisers. Secondly, we have sought to clarify the intention behind the provision related to the liability of officers where the offence is committed by a corporate body. This aims to ensure that where, for instance, a corporate director is liable, then the directors of that corporate body can also be pursued. The intention has never been to make the directors of the corporate body strictly liable, which was a concern expressed in Committee. Amendment No. 467, which stands in the names of the noble Lords, Lord Sharman and Lord Razzall, proposes a different approach. It aims to link liability for the offence to the person responsible for the offer document in accordance with the rules of the Takeover Panel. We carefully examined this approach. I recognise that it has merits but we decided to pursue the formulation that we have taken as the panel rules do not provide absolute clarity as to the person responsible in all cases and there is an element of discretion available to the panel. For instance, the panel may consent to certain directors not being responsible in exceptional circumstances. We think that our solution produces a similar result to that proposed by this amendment in most cases, but has the advantage of greater certainty. I very much hope that noble Lords will agree that our amendments meet the concerns which have been expressed. I hope that they will find support. I beg to move.