England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION, CARDIFF DISTRICT REGISTRY
HIS HONOUR JUDGE KEYSER QC
3CF70351

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th July 2015

Lord Justice Briggs :

Introduction

1. This is an appeal against the order of HHJ Keyser QC, sitting as a Deputy Judge of the Chancery Division in the Cardiff District Registry, made on 8^th September 2014, giving relief for unfair prejudice pursuant to Section 996 of the Companies Act 2006. The relief granted consisted, in substance, of an option to the Petitioner (and Appellant), Mr. David Thomas, to acquire the single share of the Respondent, Ms Catriona Dawson, in their quasi-partnership company Invicta Care Homes Limited ("Invicta") for the sum of £55,000 on specified further terms to which I will later refer.
2. The fifteen grounds of appeal may be summarised as amounting to two main complaints by Mr. Thomas about the Order. His first, substantive, complaint is that, on unchallenged expert evidence before the Judge, produced pursuant to his earlier direction that Ms. Dawson's share should be transferred for a price fixed by a process of valuation, her share was worthless, and should have been ordered to be transferred for a nominal consideration. His second, procedural, complaint was that the Judge radically departed from the basis upon which he had earlier ordered that the price should be ascertained, without any proper evidential basis for doing so, and without giving the parties (both of whom appeared as litigants in person before him) a proper opportunity to respond to his change of course.
3. Mr. Thomas and Ms. Dawson were professionally represented on this appeal, respectively by Mr. Gareth Jones and Mr. Turlough Stone. Mr. Jones sensibly focussed his submissions mainly, although not exclusively, on the substantive rather than the procedural ground. Having heard Mr. Jones, we did not think it necessary to require Mr. Stone to amplify the submissions in his skeleton argument, save in relation to one small point upon which we needed, and obtained, clarification.
4. No issues of contested fact were raised on this appeal. Nor was there any disagreement between counsel as to the applicable legal principles. I am content, like Mr. Thomas, to set out and adopt as the applicable principle to the grant of relief for unfair prejudice the following dictum of Oliver LJ in Re: Bird Precision Bellows Limited [1986] Ch 658, at 669D-E, that this statutory jurisdiction conferred:

"a very wide discretion to do what is considered fair and equitable in all the circumstances of the case, in order to put right and cure for the future the unfair prejudice which the petitioner has suffered at the hands of the other shareholders of the company."

Oliver LJ was of course speaking of a statutory ancestor of Section 996, but it has not been suggested, nor could it be, that the successive re-enactment of what was then Section 75 of the Companies Act 1980 has in any way narrowed the ambit of that discretion.

Decision

5. I would dismiss this appeal. There is, in my view, nothing at all in the complaint of procedural unfairness in the course which the Judge adopted. As to the substantive complaint, the Judge was presented with what he acknowledged was a difficult problem in the light of the valuation evidence presented, which showed that Invicta was balance sheet insolvent. Nonetheless the solution which he chose for dealing with the unfair prejudice which he had identified in his earlier judgment on 23^rd May 2014 was, although in certain respects unusual, well within the ambit of the discretion conferred upon him.

Background

6. There being no relevant factual dispute, I can take the background by way of summary, mainly from the earlier judgment to which I have referred. Mr. Thomas and Ms. Dawson formed a relationship and cohabited together from 1996 until it broke down, and they separated, in August or September 2009. During that period they were both partners in the sense that they lived together in a home which they jointly owned, and business partners, in the sense that from about 2001 they jointly acquired investment properties, initially in their own names, and later in the name of a company DCT Property Holdings Ltd ("DCT") and, last of all, they entered into a residential care home business through Invicta, from September 2007, from a care home property acquired by Invicta in February 2008. Mr. Thomas and Ms. Dawson each owned a single share in Invicta, and they were its only directors.
7. Mr. Thomas was more actively engaged than Ms. Dawson in the care home business, being recognised as the Responsible Person by the Care and Social Services Inspectorate for Wales, but the day-to-day running of the business was carried out by a manager employed by Invicta.
8. The company incurred very substantial borrowing liabilities for the purpose of establishing its care home business, to the extent that, to ensure its continued solvency, Mr. Thomas and Ms. Dawson agreed that their takings from the company should be limited to £100 per week each, later increased to £110 per week.
9. The parties' relationship started to deteriorate not long after Invicta's purchase of the care home. When they separated in late 2009, Mr. Thomas availed himself of a flat at the care home and, thereafter, his board and lodging was provided by Invicta without payment by him. Ms. Dawson's continued residence at their jointly-owned home was funded from income derived from their other shared business enterprises.
10. The breakdown in the parties' relationship did not immediately lead to a breakdown in their joint management of Invicta. This only came to a head in May 2011 when (Mr. Thomas taking the first step) they embarked upon a series of tit-for-tat withdrawals of money from Invicta's bank account, in each case unauthorised by them jointly as directors, to the extent that, by the time of the trial in early 2014, Mr. Thomas had made unauthorised withdrawals amounting to £58,422 and Ms. Dawson had made unauthorised withdrawals amounting to £28,416. The bulk of Ms. Dawson's withdrawals consisted of £23,009.98 which she drew by way of purported repayment of a director's loan by her to Invicta. Not only was that repayment unauthorised, but the relevant director's loan was subordinated to other liabilities of the company, not by then repaid, so that it should not have been repaid in any event, as the Judge eventually found.
11. By the time the parties' deteriorating relationship led to litigation between them, issues about the conduct of the affairs of Invicta were by no means the only matter in dispute. There were, in addition, money claims between them as individuals, and a dispute as to what should be done about their jointly-owned residential property, to which the Judge referred as the TOLATA claim, by reference to the Court's jurisdiction under the Trusts of Land and Appointment of Trustees Act 1996. So far as concerned Invicta, the proceedings included the unfair prejudice claim which is the subject matter of this appeal, and also a derivative claim and cross-claim, by which each of them sought to recover for Invicta the sums which they each alleged that the other had withdrawn without authority.
12. These claims were all case-managed and then tried by the Judge at a single hearing in March 2014. I need say nothing about the TOLATA claim. The personal claims between them as individuals were dismissed. The Judge gave judgment for recovery of the unauthorised withdrawals in the aggregate sums to which I have referred against each of Mr. Thomas and Ms. Dawson. Claims by Mr. Thomas against Ms. Dawson's brother for participation in her unauthorised withdrawals were dismissed.
13. The particulars of the unfair prejudice claim may best be taken from the Judge's concise summary, in paragraph 81 of his May 2014 judgment:

"The complaint in respect of the Unfair Prejudice Claim is essentially as follows. Since the relationship between Mr Thomas and Ms Dawson broke down, he has continued to manage the business of the Care Home, but she has failed and refused either to consent to the payment to him of a proper salary, or to permit him to take from the company sufficient moneys to discharge his credit card indebtedness, or to enable Invicta to obtain adequate banking facilities, with the result that it has continued in business only with difficulty and by the favour of Mr Thomas. More fundamentally, the quasi-partnership that lay at the base of the company has ended and the business relationship between Mr Thomas and Ms Dawson must end, whether by one buying out the other's shares in Invicta or by the sale of the business and the winding up of the company."

14. The Judge found the unfair prejudice case made out, but he apportioned no particular blame as between Mr. Thomas and Ms. Dawson for having been the prime cause of it, taking the pragmatic view (not challenged on this appeal) that it arose inevitably from the breakdown in their relationship. It is, again, convenient to set out in full the dispositive final paragraph of the Judgment:

"I do not think that it will help to rehearse the parties' mutual grievances any further at this point. The simple fact is that the financial management of the company has largely broken down, in circumstances that I have already set out. This is to the prejudice of the members generally, namely Mr Thomas and Ms Dawson. There are three possible courses of action. First, the company could be wound up and the assets distributed. Second, an order might be made for the purchase by one party of the other's shares. Third, the parties might agree the terms of a shareholders' agreement, with management being vested in one or the other of them. I cannot impose such an agreement. I should not wish to make an order for the company to be wound up, unless it were unavoidable. If an order for purchase of shares is to be made, it will make more sense for Mr Thomas to purchase Ms Dawson's shares: first, he has closer involvement in the business of the company; second, it was apparent at trial that the manager of the Care Home and Ms Dawson would not be able to share a constructive relationship. I shall discuss the way forward with the parties at the hearing for the handing down of the judgment."

15. The Judge only made an interim Order in May, in relation to the share purchase upon which he had resolved, in the following form:

"1. The Petitioner do purchase the Share of £1 in the capital of the Company currently registered in the name of the First Respondent at a price to be fixed.

2. The First Respondent's share shall be valued by reference to the assets, profitability and future prospects of the Company and without any discount for the fact that the First Respondent's shareholding is only a 50% holding and on the footing that the Company's net assets include such moneys as have been ordered to be repaid to the Company by the Order made this day in claim no. 3CF0085, and on the footing that the liability of the First Respondent to repay to the Company £23,009.98 as mentioned in the said Order shall correspondingly increase the amount of her outstanding director's loan.

3. The parties shall by 20 June 2014 write to the Court with their respective proposals for the receipt of valuation evidence, with respect in particular to (a) the manner of valuing the assets in the Company, (b) the cost of valuation evidence and (c) the proposed funding of such valuation evidence.

4. There be a directions hearing on the first available date after 26 June 2014. Time allowed: 1 ½ hours."

In addition, the Judge gave directions ensuring that, pending the share sale, Ms. Dawson would continue to obtain reasonable information about Invicta's finances.

16. The Judge gave further directions on 1^st July 2014, requiring the provision of relevant accounts by Invicta, and permitting the parties to adduce business valuation expert evidence from a single joint expert "in respect of the valuation of the Second Respondent" (Invicta).
17. In the event, the valuation, produced in July 2014 by Taylors Business Surveyors and Valuers as single joint expert, contained a detailed professional valuation of the care home business owned by Invicta, expressed as a "market value of the property (i.e. the care home) as a fully-equipped trading care home" rather than a valuation either of Invicta itself, still less Ms. Dawson's single share in Invicta. Read together with the Company's accounts, it showed that Invicta was in fact balance sheet insolvent, because the reported value of the business of £480,000 had to be set against the aggregate of its liabilities, exceeding £850,000, made up as to £710,000 owed to its bank, and a little over £156,000 owed to Mr. Thomas and Ms. Dawson on directors' loan accounts.
18. The expert evidence did not however suggest that Invicta was commercially insolvent (i.e. unable to pay its debts as they fell due). On the contrary, it proceeded upon an assumption that the care home business was a going concern, and it identified an EBITDA for the business on the basis of fair maintainable levels of income and profitability slightly in excess of £100,000 per annum. There was no evidence that Invicta's lenders, other than its directors, were pressing for repayment, or that its ordinary trade creditors were not being paid in good time.
19. Furthermore, it was common ground that, prior to the dispute between the parties, Invicta had been able to pay sums to each of them exceeding £5,000 per annum without thereby defaulting in payments due to lenders and other creditors. Invicta was also, as I have said, able to undertake the cost of providing free board and lodging to Mr Thomas, at a flat within the care home. Furthermore, Invicta had not succumbed to creditor pressure by reason of the aggregate £87,000-odd drawn by its directors from its funds without authority, and the judgments against each of them that these sums should have been repaid had not been satisfied when the issue as to the buyout price came back before the Judge on 8^th September 2014. For as long as Invicta remained deadlocked at shareholder and board level, there was no real prospect that either of the parties would enforce the relevant judgment for the company's benefit against the other, at least without further derivative proceedings.

The September hearing and Judgment under appeal

20. The parties were, again, litigants in person at the resumed hearing, where the Judge had available both the expert's report (the contents of which were unchallenged) and Invicta's relevant accounts. The Judge pointed out at an early stage that the expert evidence did not purport to value either Invicta or Ms. Dawson's share in the company, but rather the care home business as a distinct asset. Mr. Thomas's submission was that, having regard to the negative value disclosed by comparing that asset as valued with the Invicta's liabilities, Ms. Dawson's share should be transferred to him for nominal consideration. It is apparent from the transcript of that hearing that there was a fairly wide-ranging discussion as to the way forward between the parties and the Judge, and in particular that the parties were given a full opportunity to make any submissions which they wished to advance.
21. In his extempore judgment which followed the short adjournment, the Judge reasoned (in summary) as follows:

i) Notwithstanding the balance sheet insolvency, Invicta plainly had a value to Mr. Thomas, since he was pressing for a transfer of a share which would give him both ownership and control of it.

ii) Invicta provided him with a modest income stream and accommodation.

iii) The obtaining of ownership and control of Invicta would give the whole of any future potential for improvement in its business to Mr. Thomas, to the exclusion of Ms. Dawson, albeit that he had already been largely responsible for its business development in the past.

iv) The prospect that Ms. Dawson would ever be able to realise her director's loan account (if re-constituted by her repayment of its unauthorised withdrawal pursuant to the derivative judgment) was remote, because it was subordinated to very substantial prior liabilities.

v) It would be manifestly unjust to Ms. Dawson if, by giving control of Invicta to Mr. Thomas, she was rendered vulnerable to enforcement of the derivative judgment against her for £28,400-odd, while he would thereby make himself immune to enforcement of the much larger derivative judgment for £58,000-odd against him.

vi) Nonetheless, nothing short of the winding up of Invicta, which was in no-one's interest, or the conferring of full control upon Mr. Thomas, would resolve the current impasse, and the prospect of future damaging disputes between the parties about its affairs.

22. The Judge concluded as follows:

"12. The exercise, I fear, is a difficult one, because it involves valuation, but valuation on a basis that is just to the parties. The answer, it seems to me, is as follows. Mr Thomas should not be obliged to pay substantial moneys to purchase the share of Miss Dawson in the company. However, if he wishes to take a transfer of the share, it seems to me that the proper figure for him to pay is £55,000.

13. In arriving at this figure I first look at the matter in the round and, second, have regard to two figures that I have already mentioned, namely the existing judgment of £28,416.83 against Miss Dawson and the figure of £25,740, which is the capitalisation on a 4.5 year term of the income latterly taken by Miss Dawson. I refer to the latter figure as a convenient reflection of the fact that the proposed method of disposition of this company deprives Miss Dawson of an ongoing income and provides a potential income to Mr Thomas. Those figures if put together come to a little over £54,000. It seems to me that it is reasonable to round that figure up to £55,000, taking into account the substantial value of the income stream to Mr Thomas.

14. In the circumstances I shall order that Mr Thomas be entitled to purchase Miss Dawson's share for £55,000. The sale shall be completed within three months, namely by 8 December 2014, failing which either party may apply to the Court.

15. For the avoidance of doubt, to the extent of £28,416.83 (the judgment in favour of the company against Miss Dawson) Mr Thomas may pay the price by payment to the company in discharge of that judgment. In other words, he can pay £28,416.83 of the £55,000 directly to the company and that will discharge the existing judgment against Miss Dawson. The balance of the £55,000 must be paid directly to Miss Dawson.

16. I cannot remember whether Miss Dawson remains either a director or secretary of the company. If she does, then forthwith upon completion of the transfer of her share to Mr Thomas Miss Dawson shall resign all positions held as an officer of the company.

17. I will order that forthwith upon completion Mr Thomas and the company use their best endeavours to obtain Miss Dawson's release from liability in respect of any guarantee that she may have given for payment of the company's debts. After completion of the purchase, and pending such release, any liability for the company's debts shall as between Mr Thomas and Miss Dawson be the responsibility of Mr Thomas, and if called upon in respect of the same she shall be entitled to be indemnified by him."

The Order under appeal broadly reflects those conclusions. I regard it as implicit that on completion Ms Dawson's director's loan account was to be treated as discharged, and Mr Stone agreed.

23. The final paragraph of the Judgment, providing for the release, if possible, of Ms. Dawson from her guarantee liabilities or otherwise an indemnity in respect of them if the share sale went ahead was not in dispute on this Appeal. But otherwise, Mr. Jones' submission for Mr. Thomas was that the Judge should have ordered the transfer of Ms. Dawson's share to his client for a nil consideration, and should have left her exposed to the enforcement of the derivative Judgment against her for £28,400-odd.

Procedural unfairness?

24. The procedural basis for Mr. Thomas's appeal was that, having ordered and given case management directions for a purchase of Ms. Dawson's share at a valuation, the Judge should not have departed from it by a process of quantification which, in effect, wholly ignored or bypassed the unchallenged valuation evidence prepared pursuant to his directions. Mr. Jones relied by way of analogy upon Burke v Bayne Services (Edinburgh) [2007] CSIH 14, where the Inner House of the Court of Session held that where parties to unfair prejudice proceedings agree for a share purchase by reference to a valuation, they should be held to that agreement, save where the valuation produced pursuant to it was for some reason fundamentally vitiated, for example by fraud or misconduct on the part of the valuer. Here, said Mr. Jones, the Judge had directed that Ms. Dawson's share should be acquired by Mr. Thomas at a price to be fixed by way of valuation. That valuation had been produced, was unchallenged, and disclosed that the value of her share was nil.
25. There are, I think, three answers to that submission. The first is that the Judge did not by his May 2014 Order commit the Court to fixing the price rigidly in accordance with any valuation evidence presented. That evidence was to be prepared and submitted for the assistance of the Court, but not by way of a fetter upon its broad jurisdiction to remedy the unfair prejudice by an appropriately just means.
26. The second answer is that the Taylors valuation did not in any event purport to value either Invicta or Ms. Dawson's share, leaving it for the Judge to decide how to identify a fair price to be paid, taking such assistance from the expert valuation as he thought fit.
27. The third answer is that the Judge's May 2014 Order was, in any event, not the final Order in relation to the unfair prejudice petition, leaving the Court free to depart from it, if in its discretion it thought it just or appropriate to do so, in the light of the valuation evidence presented, and its assessment of it. For those reasons, the Burke case is not a useful analogy in any way.
28. Mr. Jones' other main procedural point was that the Judge should not have departed from the determination of value by reference solely to the expert evidence without giving the parties further time to submit further evidence, or make further submissions. As to that, although the parties represented themselves at all stages before the Judge (in Ms. Dawson's case with the assistance of her brother as a McKenzie friend), it was for them to respond to the implications of the valuation evidence and the Judge's immediately-expressed view that it did not purport to value Ms. Dawson's share in any event, with such application to adduce further evidence or make further submissions as they thought fit. Mr. Thomas was a retired barrister, and it is evident from the transcript of the hearing that he retained substantial advocacy skills. He was in no way constrained in the submissions that he made, and made no application to adduce further evidence. In any event, the evidential matters relied upon by the Judge, such as the parties' respective exposures under the derivative judgments against them, and the history of the parties' ability to derive significant financial benefits from the company, were all matters which had been fully examined at the trial of the matter in March.
29. Finally under this heading Mr. Jones submitted that, at the least, the Judge ought to have provided an indication of the way in which his mind was working, so as to give the parties (and his client in particular) an opportunity to make submissions about it, before announcing his decision in his extempore judgment. In my view, the question whether a Judge should or should not take that course is a highly case-specific matter within his judicial discretion. It is not a ground of appeal that the Judge did not take that course in the present case, not least since he had provided the parties with the period from May until September during which to consider and deploy any matters relevant to the formulation of a just remedy for the unfair prejudice.

Appeal as to the substance

30. Mr. Jones' main submission was that, once reference is made to the plain and obvious balance sheet insolvency of the Company, the attribution of any significant value, let alone £55,000, to Ms. Dawson's share in Invicta was clearly outwith the most generous ambit of discretion under Section 996 because, in substance, it gave her a wholly unjustified payment on departure from the Company, leaving Mr. Thomas with an insolvent entity, and an indemnity liability in relation to the Company's borrowings. He added that Mr. Thomas was, being in his early 60s, well on the way towards retirement, with only a limited period in which to close the yawning gap between the value of the Company's assets and its liabilities.
31. I am in no doubt that the Judge was not merely entitled but correct to attribute a significant positive value, rather than a merely nominal value, to Ms. Dawson's share in the company. He was, in particular, entitled to take into account the particular value which its acquisition represented to Mr. Thomas, in obtaining control, so as to be able to enforce the derivative judgment against Ms. Dawson, while at the same time securing the non-enforcement of the much larger derivative judgment against himself. He was also able to secure the open-ended continuation of his free board and lodging and, without succeeding in any significant improvement in the company's profitability, to amalgamate the parties' previous drawings, in an amount approaching £11,000 per annum, albeit as the quid pro quo for significant managerial work on his part. Furthermore, as I suggested to Mr. Jones during argument, the Court is entitled to infer from Mr. Thomas's vigorous pursuit of this Appeal that he wishes to obtain ownership and control of the company, as something of real value to him, where the Judge's Order would have enabled him simply to walk away if he regarded the company as valueless, because it gave him an option, but not the obligation, to acquire Ms. Dawson's share. I found Mr. Jones's attempted explanation, that his client's enthusiasm was attributable to personal matters arising out of the parties' former relationship, to be unconvincing.
32. The critical question is whether the Judge's analysis as to the appropriate figure at which to fix the price is challengeable. By that I mean not whether his analysis was right since, in this difficult case, there may be a number of reasonable responses to the problem facing the Court. The question is rather whether his analysis falls short of a proper exercise of the broad discretion to fashion a just solution to the unfair prejudice affecting both parties in relation to Invicta's affairs.
33. I have no difficulty at all with the Judge's attribution of a capitalised sum for Ms. Dawson's former income stream as part of the price, namely £25,740. That is an income stream which she had obtained, until the parties fell out, by virtue of her shareholding, and the potential for which would fall into Mr. Thomas's lap upon transfer of her share.
34. The treatment of her liability to repay £28,400-odd as an ingredient in the price is less straightforward, although it is entirely understandable why the Judge enabled Mr. Thomas to pay that part of the price by discharging her liability to the company on her behalf. The money would thereby go round in something of a circle from Mr. Thomas back to a company which he would, by then, own and control so that, with a modest amount of imagination, he could complete a clean break between Ms. Dawson and the company by paying her only £25,740.
35. The explanation why the Judge regarded the £28,400-odd as an item of value for which Mr. Thomas should pay Ms. Dawson is, I think, this. By obtaining control of the company, he would place himself in a position to enforce the derivative judgment against Ms. Dawson so as to swell the assets of the company he by then wholly owned by that same amount, namely £28,400-odd. It was an amount which, for as long as Ms. Dawson retained her share and joint control, would be unlikely to be returned to the company's coffers, just as the £58,400-odd liability of his would be unlikely to be paid for as long as he retained either one share, or, a fortiori, total control. Thus, the Judge's reasoning may properly be supported by the analysis that access to a further £28,400 was directly attributable to Mr. Thomas's acquisition of Ms. Dawson's share. The mechanism whereby he was able, in effect, to discharge her liability for that amount as part of the £55,000 price neatly reflected that analysis.
36. The Judge's solution did not, of course, necessarily secure a clean break between Mr. Thomas and Ms. Dawson in relation to the affairs of the company, or necessarily put an end to a continuing deadlock in the management of its affairs. Nonetheless it was a remedy which would achieve precisely that result if Mr. Thomas chose to avail himself of it. Accordingly, he cannot it seems to me complain that the conferral of a mere option to purchase Ms. Dawson's share was in any sense unfair or unjust to him.
37. I am therefore satisfied that the Judge's imaginative solution to the difficult problem of remedy facing him in September 2014 was well within the broad scope of the statutory discretion afforded to him. For these reasons, I would dismiss this Appeal.

Lord Justice Ryder:

38. I agree.

Lady Justice Arden:

39. I also agree.