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Time for boards to turn and face climate ch-ch-ch-ch-changes?

10 October 2018
DWF is hosting a Chatham House Rule Market Led seminar, discussing: Insuring D&O Risks in 2019 & Beyond – Testing Times for Corporate Governance & Coverage?  

The Cowardly Lion (upon noticing the snow that had fallen on the poppy field): Unusual weather we're having, ain't it?  [The Wizard of Oz, MGM, 1939]

 

Eighty years on, the lion's words resonate with the freshness of morning dew.

Heatwaves and floods, earthquakes and storms: this year's rainbow of weather events demanded a good deal of the political classes' attention.  But to what degree should climatic conditions outside the boardroom concern corporate leaders and their D&O insurers?  Do corporate musings and commitments on the topic amount to no more than jaded virtue signalling, or are they necessary elements in 21st century corporate governance's sine qua non? Judicial observations hint at an intriguing weathervane.

 

In R. (on the application of People & Planet) v HM Treasury [1], the claimant sought judicial review of the Treasury's approach to its investment in the RBS, arguing the existence of a legitimate expectation that when the government exercises its powers, it does so with a view to preventing public money being spent on projects that have the most obviously detrimental impact on climate change.  The application failed, but nonetheless provides food for thought.  One wonders, for example, what might be the outcome, if similar arguments were to be framed in a shareholders' derivative claim. 

 

And what about employees? In Grainger plc & others v Nicholson [2], Burton J concluded that a genuinely held belief in man-made climate change, and in moral imperatives alleged to flow from that change, are capable of constituting a philosophical belief for the purposes of bringing a claim under the Employment Equality (Religion or Belief) Regulations 2003.

 

As Climate Change 100+[3] drives on, it doesn't seem beyond the bounds that the direction of traffic will be for this terrain to receive increased scrutiny by the courts.

 

Boardrooms may no longer be impermeable to the climate.  Time for Ch-ch-changes?

 

 

Ch-ch-ch-ch-changes

Turn and face the strange

Ch-ch-changes  [David Bowie, Changes, Hunky Dory, 1971]

 

 

If you would like to receive an invitation to attend the Chatham House Rule Market Led seminar, discussing: Insuring D&O Risks in 2019 & Beyond – Testing Times for Corporate Governance & Coverage?, then please email jennifer.coyle@dwf.law



[1] [2009] EWHC 3020 (Admin)

[2] UKEAT/0219/09; [2010] IRLR 4

Further Reading