· Relevant test under s. 263(3)(b) is that of a hypothetical director.
Ø i.e. if such a person would not attach very much importance to pursuing claim, no leave granted.
· Factors which hypothetical director would take into account include:
i) Likelihood of claim being successful
- i.e. if breaches of duty not obvious, would not bring claim
ii) Ability of company to recover any damages awarded
iii) Costs of proceedings
iv) Damage to company’s reputation
· Fact that C had alternative claim for unfair prejudice considered important to exercise of discretion under s.263(3)