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Company Law

Analysis - guidance - compliance

26 APR 2013

ATTWOOD v MAIDMENT [2013] EWCA Civ 119

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ATTWOOD v MAIDMENT [2013] EWCA Civ 119
Court of Appeal
Judges: Arden, Elias, Black LJJ on 26 February 2013
Mr Thomas Grant & Mr James Sheehan for the appellant
Mr Andrew Clutterbuck for the respondent
ARDEN LJ:
[1] Mr Maidment now appeals certain of the directions ("valuation directions") given by HHJ Hodge QC in his judgments of 23 May 2012 ("the May judgment") and 16 July 2012 ("the July judgment") for ascertaining the fair value of the shares in Annacott Holdings Ltd ("the company") held by Mr Attwood, the respondent to this appeal. The judge had previously ordered Mr Maidment to purchase those shares following a successful petition brought by Mr Attwood for relief for unfair prejudice under section 994 of the Companies Act 2006. Mr Maidment and Mr Attwood had effectively been 50:50 shareholders. The petition succeeded principally on the ground that Mr Maidment as sole director had procured the company to transfer its entire portfolio of 46 properties to him at an undervalue.
[2] The following valuation directions given by the judge are not appealed ...
 
BARCLAY PHARMACEUTICALS v WAYPHARM LP AND OTHERS [2013] EWHC 503 (Comm)
Queens Bench Division
Judge: Gloster J, Dbe
14 March 2013
Charles Russell Llp for the Claimants
Ms. Marcia Shekerdemian for the Court-Appointed Receiver
Mr. Antoine Mekni was not represented and did not appear, But Made Written Submissions To the Court
 
GLOSTER J:
Introduction
[1] The previous history of this matter, prior to my giving judgment in favour of Barclay Pharmaceuticals Limited ("the First Claimant") in February 2012, is set out in my judgment reported at [2012] EWHC 306 (Comm). Of particular relevance for present purposes is an ex parte order made by Burton J on 10 December 2009, whereby Mr. Geoffrey Carton-Kelly ("the Receiver"), a partner in Baker Tilly, chartered accountants, was appointed as receiver of the "Receivership Assets" as therein defined. That order was continued on its return date on 15 January 2010.
[2] In my judgment I adjudged the First, Second and Fourth Defendants liable to the First Claimant in the amount of £8.7 million in relation to a fraudulent operation of letters of credit. I made adverse findings as to the credibility of Mr. Antoine Mekni ("the Second Defendant"). He was represented by solicitors and leading counsel who prepared his case before coming off of the record shortly before trial. The Second Defendant was unrepresented throughout the trial but engaged the same solicitors and leading counsel to prepare his closing submissions....
 
 
BERNTSEN AND OTHERS v TAIT AND OTHERS [2013] EWHC 93 (Ch)
Chancery Division
Judge: Norris J
1 February 2013
Mr Miah for the Applicants
Mr Justin Fenwick QC and Mr Ben Smiley for the Respondents
NORRIS J:
[1] This is a Respondents' application in insolvency proceedings either to strike out the proceedings or to give summary judgment in the Respondents' favour. I am therefore not concerned to determine issues of fact. But I must set the proceedings and the application in their context: and must therefore give some factual account. In the overview which follows I have drawn upon what is agreed, what is said by the members of the LLP in their statements of case and evidence, and what appears on the face of the documents. I will make reference to the contentious areas. I will focus on two themes: the banking arrangements of the Applicants' partnership, and the nature of the Respondents' engagement.
[2] Mr Innes Berntsen ("Mr Berntsen") and Mr Christopher Richardson ("Mr Richardson") decided to invest the proceeds of the sale of their business in a hotel development project. They purchased the Coniston Hotel at Sittingbourne, Kent ("the Hotel"), which was in an extremely run down condition, with a view to refurbishing and enlarging it. For that purpose on the 6 September 2007 they formed a limited liability partnership called the Coniston Hotel (Kent) LLP ("the LLP"), of which they were the only two members. The partnership constitution is not in evidence. Part of the business of the LLP traded under the name of "Bedfont Construction": as its name suggests that was concerned with the building and construction work that was required. The Hotel business itself was to trade under the name of "The Coniston Hotel"...
 
BRUMDER v MOTORNET SERVICE AND REPAIRS LTD AND AVIVA INSURANCE LTD FIRST SECOND [2013] EWCA Civ 195
Court of Appeal
Judges: Ward, Longmore, Beatson LJJ
14 March 2013
Anthony Coleman for the appellant
Neil Moody QC for the Respondents
BEATSON LJ:
Introduction
[1] The question which falls for decision in this appeal is whether the sole director and shareholder of a company who suffers personal injuries as a result of the breach by the company of an absolute statutory obligation to maintain equipment in efficient working order can bring a claim against the company even though he was in breach of his obligations to the company to exercise reasonable care to enable the company to fulfil that obligation, and the company could only do so vicariously through him.
[2] Mr Peter Brumder, the appellant, is the sole director and shareholder of Motornet Service and Repairs Ltd, a company specialising in servicing vehicles and putting them through their MOT inspections. The company is the first respondent to this appeal. Its insurer, Aviva Insurance Ltd, is the second respondent. On 8 November 2008 Mr Brumder's left ring finger was severed from his hand while he was trying to climb down to ground level from a raised hydraulic ramp in the first respondent's workshop after the compressor in the ramp mechanism failed. An attempt to reattach the finger was unsuccessful. He appeals against the order of His Honour Judge Levey in the Brighton County Court dated 12 June 2012 dismissing his claim for damages for the injuries sustained by him. The learned judge did so "on account of finding that [Mr Brumder] was 100% contributorily negligent"...
 
 
CARILLION CONSTRUCTION LTD v HUSSAIN AND OTHERS [2013] EWHC 685 (Ch)
Chancery Division
Sir William Blackburne
27 March 2013
Richard Millett QC and Peter Cranfield for the applicant
Stephen Davies QC for the Respondents
SIR WILLIAM BLACKBURNE:
Introduction
[1] This application which is dated 15 October 2012 is by Carillion Construction Ltd ("CCL") for leave under section 424(1)(a) to make an application for relief under section 423 of the Insolvency Act 1986 ("the 1986 Act") against Simon Carves Ltd ("SCL") (now in liquidation) and its ultimate parent company Punj Lloyd Ltd ("PLL").
[2] PLL, which is a company incorporated and registered in India, is and was at all material times the ultimate parent company of SCL. I mention, because CCL attaches importance to this, that at all material times two of the directors of SCL, a Mr Punj and Mr Chhabra, were respectively chairman and executive director of PLL...
 
DEAR v JACKSON [2013] EWCA Civ 89
Court of Appeal
Laws, Lewison and McCombe LJJ
22 February 2013
Robert Miles QC and Camilla Bingham for the Appellants
David Chivers QC and Philip Gillyon for the respondent
MCCOMBE LJ:
(A) Introduction
[1] This is an appeal, brought with permission granted by Briggs J, from his Order of 25 July 2012, made upon the trial of preliminary issues. At the trial of those issues the Judge declared there to be certain implied terms of an Agreement ("the Agreement") dated 29 September 2008 and made between (amongst others) the appellants ("Messrs Dear and Griffith") and the respondent ("Mr Jackson"). By the Order the Judge also required the parties to the Agreement not to invoke certain provisions of the Articles of Association of a company incorporated in Guernsey and called Tetragon Financial Group Limited ("TFG") to remove Mr Jackson from office as a director of TFG and not to invoke any other power to remove Mr Jackson as such director (with a specified exception), provided that an event specified in clause 5(b) of the Agreement ("a Termination Event") has not occurred.
[2] The Order further stated that provided a Termination Event had not occurred and insofar as necessary, Messrs Dear and Griffith were required to take certain further steps, as controlling shareholders of Polygon Credit Holdings II Limited ("PCH II") (the sole voting shareholder of TFG), to absolve themselves from, or to disapply what otherwise might have been a fiduciary duty to concur in Mr Jackson's removal as a director of TFG...
 
 
ECKERLE, BERTHEUX and HALLENSLEBEN v WICKEDER WESTFALENSTAHL GMBH and DNICK HOLDING PLC [2013] EWHC 68 (Ch)
Chancery Division
Norris J
23 January 2013
Stephen Horan for the claimants
Daniel Lightman for the first defendants
 
NORRIS J:
[1] DNick Holding plc ("DNick") was incorporated in England as a public company: but it was managed and operated from Germany and its shares were only listed for trading on German exchanges. Under the rules of those exchanges all transactions were in dematerialised form.
[2] In April 2011 DNick sold one of its subsidiaries and shortly thereafter announced its intention to make a dividend distribution to DNick's shareholders...
 
 
FHR EUROPEAN VENTURES LLP v MANKARIOUS [2013] EWCA Civ 17
Court of Appeal
The Chancellor, Lewison LJ
29 January 2013
Mr Christopher Pymont QC for the Appellants
Mr Matthew Collings QC for the Second Respondents
LEWISON LJ:
[1] What is the appropriate remedy against an agent who has received a secret commission from the seller of property which his principal bought at a price negotiated on his behalf by the agent? That is the question raised by this appeal. The full facts may be found in the judgment of the trial judge, Simon J, whose judgment is at [2011] EWHC 2308 (Ch) [2012] 2 BCLC 39. Only a short summary is necessary for the purposes of this appeal.
[2] In September 2004 the Monte Carlo Grand Hotel in Monaco was owned by Monte Carlo Grand Hotel SAM, a Monegasque company. Its share capital was owned by Monte Carlo Grand Hotel Ltd, a BVI company. The latter was interested in a discreet sale either of the hotel itself or of the company that owned it. Cedar Capital Partners LLC ("Cedar") was a new business venture established a couple of months earlier by Mr Mankarious with the intention of providing consultancy services to the hotel industry. A number of the claimants were among his clients and contacts. Even before he established Cedar Mr Mankarious had learned of the wish of the ultimate owners of the hotel to sell it; and that they were looking for a price in excess of € 200 million. In August Mr Mankarious encouraged the relevant claimants ("the Investor Group") to investigate the possibility of buying the hotel; and in the following month he prepared a memorandum for them that told them that the owners were offering the hotel for sale through Cedar on an off market basis...
 
 
RE MARCONI CORPORATION plc [2013] EWHC 324 (Ch)
Royal Court of Justice
Henderson J
21 February 2012
Mr David Allison for the Applicants
HENDERSON J:
Introduction
[1] This is my judgment on an application to the court for directions by the supervisors of two schemes of arrangement pursuant to section 425 of the Companies Act 1985 ("the Schemes"), entered into between Marconi Corporation Plc ("Corp"), Marconi Plc ("PLC") and their respective creditors, which were sanctioned by the High Court on 12 May 2003 and came into effect on 19 May 2003.
[2] Corp was the principal trading company of the former Marconi Group. PLC was the holding company of the Group and the parent company of Corp. The broad purpose of the Schemes was to give effect to a proposed restructuring of the Marconi Group whereby the claims of all the creditors of Corp and PLC (with specified exceptions) ("the Scheme Creditors") were cancelled in consideration of specified distributions of assets ("the Scheme Consideration") pro rata to their claims. The potential claims of the Scheme Creditors which were thus extinguished amounted in total to approximately £9.9 billion (£5.2 billion in relation to Corp, and £4.7 billion in relation to PLC)...
RICOH EUROPE HOLDINGS BV AND OTHERS v SPRATT AND ANOTHER [2013] EWCA Civ 92
Court of Appeal
Mummery, Patten, Treacy LJJ
19 February 2013
Mr David Chivers QC and Mr Alex Barden for the Appellants
Mr Peter Arden QC for the Respondents
PATTEN LJ:
[1] The appellants (which, for convenience, I will refer to collectively as Ricoh) are creditors of Danka Business Systems Plc ("the Company") which is now in members' voluntary liquidation. The expected surplus in the liquidation exceeds US$66m. Ricoh's claims in the liquidation arise from various tax indemnities which were contained in clause 7.04 of a sale and purchase agreement (SPA) dated 12th October 2006. It is unnecessary to set out the precise terms of the indemnities. A point of construction was taken in respect of them but that is now resolved. Under the SPA (which was completed on 31st January 2007) Ricoh acquired the issued share capital of various companies which are incorporated in a number of European countries and the Company agreed to indemnify Ricoh in respect of the pre-completion tax liabilities of the companies it acquired except to the extent that those liabilities were included in the completion accounts and were therefore included in the calculation of the purchase price. The indemnities were given for a period of 7 years.
[2] As a consequence, at the commencement of the liquidation in February 2009, Ricoh had both crystallised and contingent claims under the indemnities. The contingent claims consisted of potential tax liabilities in Germany, Italy, France and Spain. In some cases the prospect of a claim and its quantification depended on the outcome of a tax audit or investigation by the relevant revenue authority. Some of those had not commenced by the date of the liquidation. In other cases, they were incomplete...
 
 
SITU VENTURES LIMITED v BONHAM-CARTER & ANOTHER [2013] EWCA Civ 47
Court of Appeal
Mummery, Aikens, Lewison LJJ
7 February 2013
Mr Daniel Bromilow for the appellant
Mr Gordon Bennett for the respondent
MUMMERY LJ:
Introductory
[1] This case was brought to determine inter alia whether, on its true construction, a clause in an agreement for the sale of shares in a company conferred on the defendant purchaser the power to terminate the claimant vendors' non-executive directorships of the company.
[2] The company in question, which was established to run an estate agency for the sale of properties in Chelsea Harbour, is called Harbour Estates Limited (HEL). The share sale agreement was dated 6 June 2003. The claimants, Jennifer Bonham-Carter and Antoinette Horn, were vendors along with Antoinette's husband, Adam. The defendant Situ Ventures Limited, a company set up by a Mr Jeremy Hammond for that purpose, purchased the shares and remains the ultimate holder of them. The purchase price was £800,000. An initial payment of £100,000 was made on completion. As the balance was to be paid by instalments over 5 years the agreement included provision for the claimants to provide assistance, if reasonably required, to the defendant purchaser and for them to become non-executive directors of HEL...
 
 
STOKORS SA LUCIEN SELCE (3) PHOENICIA ASSETS MANAGEMENT (HOLDING) SAL (4) ALEXIS KUPERFIS [2013] EWHC 631 (Comm)
Queens Bench Division
Field J
27 March 2013
Jonathan Nash QC and Rajesh Pillai for the Claimants
Paul Downes QC, Emily Saunderson and Joseph Sullivan for the defendant
George Spalton for the Part 20 defendant
FIELD J:
Introduction
[1] The claimants are four investors who in March 2008 entered into agreements with a small Scottish brokerage, Echelon Wealth Management Limited ("Echelon"), under which Echelon was to enter into contracts for difference ("CFDs") on each of their behalves with the Defendant ("IG"). Under these agreements, money paid to Echelon by the investors to fund their CFD trading was to be held in segregated accounts and was to be used only for their own separate trading and not for any other purpose. However, instead of placing the investors' trades as their agent, Echelon placed matching trades with IG under a contract that provided that both parties would deal with each other as principals, and the individuals at IG handling the Echelon account dealt with Echelon on this basis. These individuals knew that Echelon was not carrying on proprietary trading and that the trades placed by Echelon mirrored the trading of its clients. Under its contract with Echelon, IG provided daily spread sheets which showed not only the overall position on the Echelon account and the current position on a Header Account through which incoming and outgoing aggregated payments were first booked, but also the current position on a large number of anonymous sub-accounts allocated by Echelon to its individual clients.
[2] The Echelon account was opened on 19 March 2008 and ended on 23 October 2008, Echelon having gone into liquidation on 17 October 2008. At the time of the liquidation Echelon owed the first three claimants €7,973,909/57, £214,780.14 and €4,153,398.73 respectively in relation to their CFD trading and there is no prospect of these sums being recovered in the liquidation. It is these sums, plus damages for loss of profits that are sought to be recovered in the action...
 
 
THE FINANCIAL SERVICES AUTHORITY v ASSET L. I. INC [2013] EWHC 178 (Ch)
Chancery Division
Andrew Smith J
8 February 2013
Mr Tim Penny and Mr Philip Hinks for the claimant
Ms Susan Siggins in person for herself and the Second defendant
Mr Philip Coppel QC and Ms Vivienne Tanchel for the Third and Fifth Defendants
ANDREW SMITH J:
Introduction
[1] This case is about whether, as the Financial Services Authority ("FSA") alleges, so-called "land-banking" schemes established and operated by the first defendant, Asset LI Inc ("ALI-Panama"), and the third defendant, Asset Land Investment Plc ("ALI-UK"), were "collective investments schemes" ("CISs") within the definition in section 235 of the Financial Services and Markets Act, 2000 ("FSMA"). The FSA's case was put as follows by Mr Tim Penny and Mr Philip Hinks, who represented it:
"Land was acquired by ALI-UK and ALI-Panama, and sub-divided into small plots. Members of the public were contacted by telephone and invited to purchase such plots. The evidence obtained by the FSA establishes that, at the time that plots were sold to consumers, salesmen acting for ALI-UK and ALI-Panama represented to consumers that those companies would seek to obtain planning permission in respect of the site as a whole, or otherwise seek to have the site ‘re-­zoned' or ‘re-classified' for residential building purposes. The evidence also establishes that salesmen informed consumers that ALI-UK and ALI-Panama would facilitate the onward sale of the site as a whole to developers, at which point consumers could expect to see a substantial return on their ‘investments'. Based upon these representations, consumers understood that ALI-UK and ALI-Panama would apply for planning permission for the site as a whole and/or that ALI-UK and ALI-Panama would facilitate the sale of the site as a whole to developers, and that they would thereby derive profits from the scheme as a whole, and on the basis of these representations and understandings they acquired plots of land at the various sites concerned."..
 
 
UNIVERSAL PROJECT MANAGEMENT SERVICES LIMITED v FORT GILKICKER LIMITED AND OTHERS [2013] EWHC 348 (Ch)
Chancery Division
Briggs J
16 February 2013
Mr James Bailey for the applicant
Miss Marion Smith for the Second and Third Respondents
INTRODUCTION:
[1] This is an application for permission to continue a derivative action. It raises for decision two related legal questions which are not the subject of any reported English authority. It does so because the action is what is called a double derivative action. The applicant is not a shareholder in the company in which the cause of action is alleged to be vested. Rather it is a member of a limited liability partnership ("LLP") which owns all the shares in that company.
[2] Prior to the coming into force of the Companies Act 2006, derivative actions relating to companies were creatures of the common law. It is common ground that the ordinary derivative action (by a member of the allegedly wronged company) was wholly replaced by the statutory derivative claim provided in Chapter 1 of Part 11 of the 2006 Act, which confers locus standi only upon a member of the relevant company. The legal questions for decision on this application are:
(1) Whether a multiple derivative action was known to English common law before the coming into force of the 2006 Act; and,
(2) If so, whether the multiple derivative action (of which the double derivative action is a sub-species) has survived the coming into force of the 2006 Act...
 
 
WEAVERING CAPITAL (UK) Ltd (IN LIQUIDATION) AND OTHERS v DABHIA AND OTHERS [2013] EWCA Civ 71
Court of Appeal
Lord Dyson, Master of the Rolls, Moore-Bick, McCombe LJJ
15 February 2013
Richard Mott for the First appellant
Katie Powell for the Second appellant
Robert Anderson QC for the Respondents
McCOMBE LJ:
(A) Introduction
[1] This is an appeal, brought with the permission of the Judge herself, from the Order of Proudman J of 30 May 2012. By that Order judgment was given for the First Respondent ("WCUK") against each of the Appellants, jointly and severally inter se and jointly and severally with two other defendants in the action, for US$ 450,000,000 and costs. In the Second Appellant's case the costs order was restricted to 75% of WCUK's costs. It was further declared that the sums paid to the Appellants by WCUK by way of salary and bonuses were paid to them in breach of their fiduciary duties to WCUK and that the Appellants were liable to account to WCUK for those payments; directions were given for the taking of accounts. Appeal is now brought against those orders. The Respondents do not resist the appeal brought in respect of the Judge's order relating to the Appellants' salary and bonuses and it is agreed that the appeal should be allowed to that extent.
[2] In the remainder of this judgment I shall call the First Appellant "Mr Dabhia" and the Second Appellant "Mr Platt". WCUK had gone into liquidation and the liquidators (appointed on 8 October 2009) were (together) called the Second Claimant in the action...
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