England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th March 2004

The Vice-Chancellor :

1. On 17th March 2003, pursuant to the powers conferred on him by s.447 Companies Act 1985, the Secretary of State for Trade and Industry authorised two of his officers, David Eric Usher ("Mr Usher") and Claire Mary Bernadette Entwistle ("Ms Entwistle"), to require Supporting Link Alliance Ltd ("the Company") to produce to them forthwith any documents they might specify. From the information and documents obtained by them it appeared to the Secretary of State to be expedient in the public interest that the Company should be wound up. Accordingly a petition was presented to the Court for that purpose on 25th November 2003. An application for the appointment of a provisional liquidator was disposed of on the basis of undertakings given to the Court by the Company and its principal director Mr Anthony Simister ("Mr Simister") on 15th December 2003. I am now asked to accept the same or similar undertakings and, on that basis, to dismiss the petition.
2. Mr Simister and his co-director Ms Selby incorporated the Company in September 2000 to carry on business as a general commercial company. They were then only 20. Mr Simister had had previous experience working in a warehouse and as a sales representative. Ms Selby did not give evidence and I do not know what, if any, previous experience she had had. The Company carried on business in and from offices in Manchester. It employed 'telesalespersons' who, by means of unsolicited telephone calls, sold advertising space in publications to be subsequently produced and distributed by the Company. I shall refer to the way in which the Company carried on its business in greater detail later. For present purposes it is sufficient to record that the 'sales pitch' included representations that the Company made regular donations to children's charities and that the publication would be distributed in the 'regional' or 'surrounding' area of the advertiser's business.
3. The first publication was a wallplanner. This is a calendar running from Monday 1st April 2002 to Monday 31st March 2003. The document measures approximately 23 x 16.5 inches. A central rectangle measuring approximately 16 x 7 inches contains the calendar printed over two right hands connected in a handshake and surrounded by the Company's name, Supporting Link Alliance Ltd. Most of the rest of the document is taken up with advertisements for a variety of businesses. There were about 30 variations to cover the different regions in which the advertisers carried on business.
4. The second publication was entitled 'The Annual Business Guide'. It is a booklet in A5 size. Below the title is added the description 'for employers of small to medium size businesses'. At the foot of the front cover is the year '2003'. The cover, front and back, is on stiff card and was printed separately from the remaining pages. Inside the front cover is an advertisement for Harrods and a list of those, including contributors, responsible for the publication. In small print at the foot of the page is a copyright notice followed by a disclaimer of liability in respect both of advertising and editorial content. The outside back cover bears the logos of 20 Charities under the heading 'Here are just a few of the many charities that have benefited from the production of The Annual Business Guide 2003'. The contents list on page 3 describes them as "Supporting Link's Nominated Charities". The inside back cover bears what are described as help and advice line numbers provided by the Inland Revenue; in addition it indicates that it is page 35. Accordingly pages 3 to 34 had to be provided to complete the publication. Those pages contain editorial content dealing with such matters as the Budget 2002, Inheritance Tax, National Minimum Wage, employment law, Health and Safety in the workplace, safety signs and regulations, charitable giving through the payroll and tax relief on computer purchases. There were 13 regional editions. The editorial content was the same for all but the advertisers differed. The number of advertisements varied from 200 to 250 advertisements each. 5,000 copies of each variation were printed at a unit cost of about 11.5p plus VAT.
5. The third publication was an Annual Business Guide for 2004. This was published after the presentation of the petition. It follows closely the format used for the Guide for 2003 but the outside back cover bears commercial advertisements as opposed to the logos of charities, the editorial content is different and the advertisements are not the same though some customers did repeat advertisements. It has been distributed. The Guide for both 2003 and 2004 is printed on good quality stiffish paper. Each guide weighs about 100 grams.
6. The business of the Company was successful. The abbreviated financial statements for the period from 12th September 2000 to 31st December 2001 prepared by a firm of chartered accountants record the following:

Turnover £240,255

Expenses £205,360

Operating Profit £34,895

Dividend £2,150

Net current assets …. £21,197

Fixed assets £5,111

Retained profit £26,307

The expenses include £63,000 in respect of directors' remuneration and £1,700 as donations to charity.

Those for the year ended 31st December 2003 record:

Turnover £482,026

Expenses £483,258

Operating loss (£1,232)

Fixed Assets £7,236

Net current assets £17,978

P/L Account £25,223

Included in expenses are £403,601 for wages and salaries, there being no separate figure for directors' remuneration, and £5,550 as donations to charity.

7. In the light of these and other figures obtained by Mr Usher, the Secretary of State accepts that the Company is and always has been solvent. It is not suggested that the Company has failed to keep proper books of account. Accordingly there has been no examination of the accounts to ascertain the extent to which the figures for 2002 might have been inflated by the inclusion of income for the wallplanner but not all the corresponding expenses, whilst those for 2003 might have been depressed by the inclusion of expenses in relation to the wallplanner without the associated income.
8. But the Company was attracting a certain amount of adverse comment. In and after November 2002 the Trading Standards Service of the Department of Enterprise Trade and Investment of Northern Ireland received a number of complaints from members of the public in relation to the wallplanner for Northern Ireland and the Guide for 2003. The complaints were investigated but the Chief Trading Standards Officer for Northern Ireland concluded that a prosecution under the Trade Descriptions Act 1968 was unlikely to succeed. Mr Simister was so informed by letter dated 21st February 2003.
9. In January 2003 the Company received complaints from solicitors acting for one of its competitors Barrington House Publishing Co. Ltd ("Barrington House") alleging passing off, fraud and breach of the law relating to charities. In the following month the Company obtained copies of mailshots from Barrington House and another of its competitors, McKenzie Campbell Publishing Ltd, addressed to their customers. The letters warned addressees that a number of unscrupulous businesses were defrauding some of their customers; five companies were named including the Company.
10. On 13th March 2003 the Company changed its name by omitting the word "Alliance". As I have indicated Mr Usher and Ms Entwistle were appointed four days later and commenced their investigations. They attended the offices of the Company on 18th March. Mr Simister provided information and documents then and subsequently when he attended the offices of the DTI in Manchester on 20th March. On 18th June 2003 Mr Simister, accompanied by his solicitor Mr Paul Ross, saw Mr Usher at the DTI's offices. Mr Simister provided further information to Mr Usher at a meeting in the DTI's offices on 3rd July and supplied more documents on 10th and 16th July. There was a telephone call from Mr Simister to Mr Usher on 23rd July. This completed what might be described as the first phase of the investigation.
11. At an early stage of the investigation by Mr Usher and Ms Entwistle, namely on 8th May 2003, the Trading Standards Service of Northern Ireland published a news release entitled "Publishing scam rips off charities and business." The news release stated that "one of those involved in this scam [is]...Supporting Link Alliance Ltd". There followed a statement from Mr McMurdo, a trading standards officer, describing the nature of the scam. Mr Simister thought that Mr Usher was responsible for the news release and rang him on 20th May to complain of the breach of the confidentiality. Mr Usher pointed out that though the initials were similar the Department of Enterprise, Trade and Investment of Northern Ireland was a different department to the DTI in England. In consequence, but not until after the decision to present a petition for the winding up of the Company had been taken, Mr Usher obtained from Northern Ireland details of the complaints they had investigated and from Trading Standards Officers in England similar complaints made to them of which he had previously been unaware.
12. The petition, presented on 25th November 2003, sets out formal matters in paragraphs 1 to 9. In paragraphs 10 to 18 it describes the manner in which the business of the Company was carried on. In those paragraphs it is alleged that

a) at no time was a potential advertiser required to authorise the purchase of the advertising space in writing,

b) it is unlikely that the regional editions of the publications provided any benefit to advertisers in a particular area,

c) the annual guides contained comprehensive disclaimers,

d) Mr Simister changed his account to Mr Usher how the annual guides were distributed,

e) the Company did not in any of its publications specify how much it would pay to charity, how it would be calculated nor how it would be paid,

f) the Company had used the logos of several charities without their consent,

g) the Company had failed to comply with Regulation 25 of the Telecommunications (Data Protection and Privacy) Regulations 1999,

h) Complaints had been received by Trading Standards Officers from persons who claimed not to have placed orders with the Company as to the aggressive manner in which the Company pursued those who did not pay,

i) Other legitimate traders and the DETI of Northern Ireland had accused the Company of being unscrupulous.

13. The grounds on which, in paragraphs 20 to 26 of the Petition, it is alleged that it is just and equitable that the Company should be wound up are:

(1) failure to comply with s.3(1)(a) to (c) Unsolicited Goods and Services Act 1971;

(2) the Annual Guides are distributed over so wide and disparate an area as to be contrary to the representations made by the Company to potential advertisers at the time of the sale of the advertising space;

(3) the distribution of the Annual Guides is not consistent with that promised to potential advertisers at the time of sale;

(4) the Company has not complied with the provisions of Regulation 7 of the Charitable Institutions (Fund-Raising) Regulations 1994;

(5) the Company has used the logos of charities for the purpose of promoting its own business without their consent;

(6) in the light of the disclaimer the contents of the Annual Guides are of dubious benefit to the business community;

(7) Mr Simister hampered Mr Usher in the conduct of his enquiries by evasive and contradictory replies to questions.

14. The petition is supported by a formal affidavit of Mr Robertshaw and a lengthy one from Mr Usher giving details of what he found from the information and documents supplied to him by the Company. Mr Simister swore four affidavits between 13th December 2003 and 2nd February 2004 raising a very large number of issues. In addition Mr Anthony Hughes ("Mr Hughes"), the deputy sales manager of the Company, swore a short affidavit on behalf of the Company dealing with the distribution of the Annual Guide for 2003. In the light of this evidence Ms Entwistle returned to the Company's offices on 17th February 2004 for the purpose of examining a number of further documents. This and other information is contained in a second affidavit sworn by Mr Usher on 24th February 2004. Ms Enwistle did not swear any affidavit of her own. This is unsatisfactory because Mr Usher had no personal knowledge of what Ms Entwistle found or was told on her return and Ms Entwistle was not cross-examined.
15. In his fourth affidavit Mr Simister dealt at some length with his communications with the Trading Standards Service in Northern Ireland, in particular with Mr McMurdo, and the complaints to which the latter referred. On 24th February 2004 an affidavit in reply to that evidence was sworn by Mr Livingstone, the Chief Trading Standards Officer. He related what Mr McMurdo had told him concerning the latter's communications with Mr Simister and some of the complainants. There was no affidavit from Mr McMurdo. This too is unsatisfactory because the person with personal knowledge, Mr McMurdo, was not cross-examined on them.
16. In addition there was no evidence from any complainant. It is clear from the documents that some of them had been prompted to complain by Barrington Hill or McKenzie Campbell. In addition Mr Simister has alleged that those competitors put forward spurious complaints purporting to be from members of the public so as, if possible, to bring down the Company. There has been no evidence from Barrington Hill or McKenzie Campbell. In these circumstances I propose to consider the allegations in the Petition, at least in the first instance, without reference to any of the complaints or the matters relative to them related to Mr Usher and Mr Livingstone by Ms Entwistle and Mr McMurdo respectively.
17. Mr Usher, Mr Livingstone, Mr Simister and Mr Hughes were cross-examined on their respective affidavits. Mr Usher produced his contemporary notes of the interviews and conversations he had had with Mr Simister. I accept Mr Usher and Mr Livingstone as truthful and helpful witnesses in relation to all matters of which they had personal knowledge. I cannot say the same for Mr Simister and Mr Hughes. Mr Simister was cross-examined for over a day. I allow for the fact that the experience of being cross-examined in court was new, unwelcome and, initially, confusing. Even so I found each of Mr Simister and Mr Hughes unreliable. Mr Simister was both evasive and voluble. In some instances, to which I shall refer in due course, his evidence was plainly untrue. Mr Hughes was present in court throughout Mr Simister's cross-examination. When cross-examined on the same topic his answers were clear, assured and largely consistent with the evidence of Mr Simister. But once counsel turned to topics on which Mr Simister had not been cross-examined, such as Mr Hughes' description of carrying two bags each containing 500 copies of the Annual Guide in order to distribute them, his evidence became incredible. I have no hesitation in preferring the evidence of Mr Usher and Mr Livingstone to that of Mr Simister and Mr Hughes. Further I approach the evidence of both Mr Simister and Mr Hughes, unless corroborated by a contemporary document, with considerable reserve.
18. I turn then to the first ground relied on by the Secretary of State which I have summarised in paragraph 13(1) above. S.3(1) Unsolicited Goods and Services Act 1971 provides that

"A person ("the purchaser") shall not be liable to make any payment, and shall be entitled to recover any payment made by him, by way of charge for including or arranging for the inclusion in a directory of an entry relating to that person or his trade or business, unless –

(a) there has been signed by the purchaser or on his behalf an order complying with this section,

(b) there has been signed by the purchaser or on his behalf a note complying with this section of his agreement to the charge and before the note was signed, a copy of it was supplied, for retention by him, to him or a person acting on his behalf, or

(c) there has been transmitted by the purchaser or a person acting on his behalf an electronic communication which includes a statement that the purchaser agrees to the charge and the relevant condition is satisfied in relation to that communication."

By subsection (2) if a person demands payment without knowing or having reasonable cause to believe that the provisions of subsection (1) have been complied with he commits an offence.

19. The application of those provisions depends on each of the Annual Guides being a "directory" within the meaning of that word as used in that Act. I have been referred to the Oxford English Dictionary, Compact and New Shorter Editions. I take the ordinary meaning from the New Shorter Oxford English Dictionary as being

"a book containing an alphabetical or classified list of the people in some category, e.g. telephone subscribers or clergy, with information about them."

I have also been referred to passages in Hansard for 4th December 1970 when what became the 1971 Act had its second reading. They do not suggest that the word "directory" was intended to have any meaning other than its normal meaning. Accordingly, as so often, reference to Hansard takes the matter no further.

20. In my judgment the word "directory" must be given its normal meaning. So defined it is clear that the Annual Guides produced by the Company were not directories. The editorial content is not a list of people or things at all. The advertisements are just that. They contain details of the advertisers, including addresses and telephone numbers, but they are not listed by reference to any category or in any order, alphabetical or otherwise. If these Annual Guides are directories then so are most newspapers and magazines. For these reasons I dismiss this ground as wrong in law. It follows that the factual issue summarised in paragraph 12(a) is irrelevant.
21. Regulation 7 of the Charitable Institutions (Fund-Raising) Regulations 1994 SI 3024/1994 provides

"(1) This regulation applies to any person who carries on for gain a business other than a fund-raising business but, in the course of that business, engages in any promotional venture in the course of which it is represented that charitable contributions are to be applied for charitable, benevolent or philanthropic purposes of any description (rather than for the benefit of one or more particular charitable institutions).

(2) Where any person to whom this regulation applies makes a representation to the effect that charitable contributions are to be applied for such charitable, benevolent or philanthropic purposes as are mentioned in paragraph (1) above he shall, unless he has a reasonable excuse, ensure that the representation is accompanied by a statement clearly indicating-

(a) the fact that the charitable contributions referred to in the representation are to be applied for those purposes and not for the benefits of any particular charitable institution or institutions;

(b) (in general terms) the method by which it is to be determined –

(i) what proportion of the consideration given for goods or services sold or supplied by him, or of any other proceeds of a promotional venture undertaken by him, is to be applied for those purposes, or

(ii) what was by way of donations by him in connection with the sale or supply of any such goods or services are to be so applied.

as the case may require; and

(c) the method by which it is to be determined how the charitable contributions referred to the representation are to be distributed between different charitable institutions."

22. It is not disputed that the regulation applied to the activities of the Company and was not observed. It follows that the factual issue mentioned in paragraph 12(e) is admitted and the ground summarised in paragraph 13(4) above is established. The importance or otherwise of the failure to comply will be more readily apparent when I have considered in greater detail how the Company carried on its business.
23. It is also the case that the Company made no attempt to comply with the provisions of Regulation 25 of the Telecommunications (Data Protection and Privacy) Regulations 1999 SI 2093/1999. This prohibits unsolicited calls for direct marketing services to individuals who have notified the Telephone Preference Service that they do not wish to receive such calls. This is not a ground for winding up because there is no evidence of any such call. But it is alleged in the petition, see para 12(g) above, as a relevant aspect of the Company's business methods. In that respect it is established. Indeed the failure of the Company to comply with the provisions of Regulation 25 is the more surprising given that the e-address of the Telephone Preference Service is given in the Annual Guide for both 2003 and 2004 as a useful business website.
24. Mr Simister told Mr Usher that when he set up the Company's business he took informal advice from a lawyer and an accountant but that neither of them told him about either S.3(1) Unsolicited Goods and Services Act 1971, Regulation 7 of the Charitable Institutions (Fund-Raising) Regulations 1994 SI 3024/1994 or Regulation 25 of the Telecommunications (Data Protection and Privacy) Regulations 1999 SI 2093/1999. He repeated this claim in his evidence before me. I accept that he did not know about the detail of any of these provisions. I also accept that he did not know that payment for a directory entry may not be demanded unless the order has been made or confirmed in writing. He did not consider, rightly, that he was publishing a directory and even Mr Usher was not aware of the provisions of the 1971 Act until this matter was put in the hands of the Treasury Solicitor.
25. But I do not accept that Mr Simister was unaware of the fact that there were and are restrictions on 'cold-calling'. As I have already mentioned, both Annual Guides referred to the e-address of the Telephone Preference Service as a useful business website. Mr Simister must have known what service it provided in order to describe it as 'useful'. Similarly Mr Simister admitted in the course of his cross-examination that he obtained advice on how to account for charitable donations and how to obtain tax relief in respect of them. He knew that there were regulations relating to collections for and donations to charity but not their detail.
26. At their first meeting on 18th March 2003 Mr Usher asked Mr Simister how sales of advertising space were achieved. Mr Simister described how the Company employed a telephone sales team of 10 to 12 staff whose job it was to find leads from newspapers, magazines and other similar sources and then ring them up. Mr Usher asked if there was a sales script. Mr Simister told him that there had been one but that it had not been used for the last six to nine months (i.e. since June or September 2002) as only experienced sales staff were then employed. On 3rd July Mr Usher went through a list of items to be produced by Mr Simister one of which was a copy of the initial sales script last used 9 months ago. At their further meeting on 10th July Mr Usher noted that it had still not been produced. On 16th July Mr Simister produced to Mr Usher a document described as the first sales script ("the First Script").
27. The First Script is in the following terms:

"Hello. Is that (NAME)?

Hello (NAME). My name is (NAME). I am calling from Supporting Link Alliance.

How are you today?

Excellent/Fantastic/Great

How's business?

Good/Brilliant/Never Mind, I am sure your business will pick up soon!

Anyway, I won't keep you, I know you are busy. We are currently contacting businesses in the local area regarding advertising space we still have available in our business publication – The Annual Business Guide, which comes out for the start of the business tax year and was wondering if you would be interested in purchasing some space to advertise your company's services in around your regional area? Could I take two minutes of your time to give you a few more details?

YES

Excellent.

The publication itself is distributed free of charge to businesses/employers in and around your surrounding area. It is sent to all kinds of businesses ranging from builders, joiners, solicitors, doctors, plumbers, retail outlets, supermarkets, public houses, schools and mechanics etc. The approximate distribution is roughly 5,000 copies in total.

The publication itself contains the latest rules and regulations that have been introduced in this year's government budget that will affect your business in the new tax year covering issues such as Health & Safety, National Insurance, Corporation tax and V.A.T. charges as well as many other topics. You will find this an extremely useful aid as it is printed in a very easy to understand language. Unfortunately if you want to be guaranteed a copy of this free information guide you do need to purchase some space as we cannot guarantee when we distribute the publication your business will be sent one.

We as a company on a monthly basis donate money to children's charities as well with profits made from our work, so if you do place an advert in this publication you will also be benefiting underprivileged children, as well as generating more business for you company.

The sizes we have available are:

Best Wishes Mention @ £149.00

1/6 Of A Block @ £199.00

½ Of A Block @ £299.00

Full Block @ £499.00

Which size would you like to take?

Fantastic.

What I will do now is I will pass your details on to our admin team. One of them will give you a call back later today just to confirm this order and to make sure we have all the correct details for your advert. They will also discuss any extra artwork requirements you have like company logo's etc.

Can I just take this opportunity to thank you for your time and for placing your order with us and I would like to wish your business all the best for the future. The admin person only will keep you around 60 seconds! Thank you. Bye!"

28. It is apparent from the document that it relates to the Annual Business Guide and describes the extent of the distribution to be undertaken in due course. In his first affidavit Mr Simister said that the First Script had not been used since 2001. In his fourth affidavit he said that it had not been used since early 2002. In his oral evidence in chief he confirmed the latter date. But in cross-examination he claimed that the First Script had not been used in relation to the Annual Guide for 2003 at all. He said that as Mr Usher appeared not to believe him when he said that there had not been a script he altered the script which had been used for the wallplanner and gave it to Mr Usher as the script which had been used in relation to the Annual Guide for 2003. Thus Mr Simister admitted deceiving Mr Usher when handing him the First Script on 16th July 2003 and lying in his fourth affidavit when he said or implied that there had been a script in use with regard to the Annual Guide for 2003 in the form he had produced. In the end this episode only goes to the honesty and credibility of Mr Simister for he agreed that whether or not a script was actually used the salesperson would cover the topics in the words used in the First Script.
29. The relevant features of the First Script are (1) the description of the area in which the advertisements will circulate and the occupation of the individuals to whose attention it was intended to bring them and (2) the references to children's charities. As indicated at the end of the First Script if the person contacted agreed to take space they were telephoned later by a member of the administration team. A script ("the Confirmation Script") was provided to and used by members of the administration team. Given my conclusion on the inapplicability of s.3 Unsolicited Goods and Services Act 1971 it is unnecessary to quote it. It is sufficient to note that it is clear that a contract was concluded orally on the telephone. It was indicated that an invoice would be sent out in due course and was to be paid within 14 or 30 days thereafter.
30. As Mr Simister made plain in his oral evidence an advertisement would not be inserted into an Annual Guide, unless and until it had been paid for. Mr Simister produced to Mr Usher the standard form invoice and five subsequent standard form letters designed to obtain payment. He did not produce or refer to any letter from a firm called Elliott, Hammond Worthing & Co. Such letters were provided to Mr Usher later by various Trading Standards Officers in connection with various complaints from members of the public.
31. Under the firm name appear the words "Legal Services". It is stated to have offices in Belfast, Dublin, Manchester, Harrogate and Bristol. Its address in Manchester is described as "Suite 4". After the signature appear the names of the "Principal" and "Practice Manager". The reader is told that "A list of Associates is available on request". The text of the letter states:

"We are instructed by The Supporting Link Ltd in relation to the above outstanding invoice to take action against you to recover the total amount due.

Despite reminders for payment in writing and by telephone you have failed to discharge this debt.

If payment is not received by The Supporting Link Ltd within 7 Days of the date of this letter, we are instructed to take the next legal course of action against you. This will be done without further notice to you.

If you fail to take notice of this letter and then court proceedings are brought against you and a judgment is enforced against you or your business, this debt will then be legally registered with the courts and you may find it difficult to obtain credit in the future.

Please make your cheque payable to the Supporting Link Ltd and send payment direct to them at:

Suite 1

1^st Floor

20 Dale Street

Manchester

M1 1EZ

Please note payment must be received within the stipulated period, and can be made by Credit or Debit Card. We are NOT prepared to discuss this over the telephone. If you have any comments to make please put them in writing and they will be assessed accordingly."

In a follow up letter from the Company this firm is referred to as "our Company Solicitor".

32. The cross-examination of Mr Simister revealed that he concocted the letter for use by the Company instead of retaining the firm of solicitors in Wallasey he had previously used for debt-collection. The named principal and practice manager were respectively the National and Deputy Sales Managers of the Company. There are no associates or other offices; there is no firm; no services, legal or otherwise are provided from Suite 4 or from the telephone or fax numbers attributed to that address. Mr Simister agreed that he should not have concocted or allowed the use of this standard letter and regretted having done so. The letter is not a ground for winding up as the true facts were not known until the cross-examination of Mr Simister. But it is relevant to the honesty and credibility of Mr Simister and the acceptability of undertakings offered by him on behalf of the Company, not least because Mr Simister was still using this letter in September 2003.
33. If and when the invoice was paid the advertisement would be included in the Annual Guide. Contrary to the representation made in telephone conversations indicated by the First Script there were no pre-planned local or regional editions. When sufficient advertisements to fill an Annual Guide had been paid for then an edition containing those advertisements would be printed. Thus the area or region covered by any particular edition depended on the success or otherwise of the sales staff. Even accepting the fact that some advertisers might specify an area other than that in which they carried on business, the geographical coverage of most editions robbed the Annual Guide of any local or regional value it might otherwise have had. Accordingly the allegation summarised in paragraph 12(b) above is made out. In his first affidavit Mr Usher analysed the areas covered by each of the 13 editions of the Annual Guide for 2003. All of them covered areas larger than what could be described as 'local', 'surrounding' or regional. Thus edition (vi) extended from Cornwall to Kent, issue (vii) included such disparate areas as Yorkshire, Cambridgeshire and Cornwall, issue xi covers the whole of Scotland and issue (xii) the whole of Wales and much of the midlands.
34. Issue (x) covered Northern Ireland and most of England. In his fourth affidavit Mr Simister described this edition as the 'latepayers' edition. He said that an advertiser who paid too late to be included in the regional edition of this choice was put into this edition. I do not accept that explanation for the geographical diversity of edition (x). The printer's invoices show that this edition, called the National Edition, was printed contemporaneously with the Wales, Scotland and East Anglia Editions and only four days after the invoice for five different London Editions.
35. The printer's invoices show that 5,000 copies of each edition were printed. Mr Simister's account of how they were distributed has not been consistent. At his meeting with Mr Usher, in the presence of his own solicitor, on 18th June he told Mr Usher that each advertiser got one copy and the rest were distributed to businesses in the advertiser's area identified from directories such as Yellow Pages. He told Mr Usher that all of them were sent by the Royal Mail. There can be no doubt about this for the solicitor intervened with an interrogatory "All by mail" and got the unqualified answer "yes". Following that meeting Mr Usher ascertained from the Company's accounts that sums spent on postage were far too small to allow for the Annual Guide to have been sent by post to more than the individual advertisers.
36. At their meeting on 23rd July Mr Usher pointed out to Mr Simister that his account of the distribution of the Annual Guide was inconsistent with the amounts spent on postage. Later that day Mr Simister telephoned Mr Usher to tell him that only the copies, two each, sent to advertisers were sent by post and that the other 4,500 were taken by car or train to one city or town within the area covered by each edition and were there distributed by hand. Thus it is clear that the allegation summarised in paragraph 12(d) above is established. In his fourth affidavit Mr Simister referred to and exhibited what he described as a delivery chart for the distribution of the Annual Guide for 2003. This had never been produced to Mr Usher. It suggests two trips by two members of staff to the area covered by each edition between January and April 2003. According to the chart Mr Hughes and another were responsible for distributing editions South West 1, South West 2 and Wales.
37. In his oral evidence Mr Hughes said that he and his companion made four trips in all to the South-West, two to Bristol and two to Bath. They also made two trips to distribute the Wales edition but only to Prestatyn and Rhyll. He described how they went by train with two bags each, each bag containing 500 copies. They had to change trains to get to Bath. They put the bags in the racks at the end of the carriage. When they arrived at their destination they made for large office buildings "to get rid of as many as possible as quickly as possible". He claimed that they distributed 2 or 3 copies to each business. By the end of the day all had been distributed and they took the train home again.
38. It was pointed out to Mr Hughes that if his account was true he and his companion had each carried round two bags each containing 500 copies. At 10 grams per copy each bag would weigh 50 kgs or 110lbs. The aggregate weight carried by each of them would be over 15.5 stone. It is plain that the evidence of Mr Hughes is unacceptable. It is clear, and I so find, that whatever distribution might have taken place it did not accord with the representations made in the First Script. First, the distribution was neither "local", "regional", nor "surrounding" for most advertisers because the area covered by each edition was more extensive than that connoted by any of those adjectives. Second, even if there was some distribution it was not effected throughout the area covered by each edition. An advertiser in the Wales Edition carrying on business in Cardiff or Swansea is unlikely to regard as consistent with what he was promised a distribution only in Prestatyn and Rhyll. Distribution in Bristol and Bath alone is inadequate coverage for the South West as a whole. Third, the National or latepayers' edition was not distributed at all. It was kept in the Company's office. If and when a potential advertiser asked to see a sample of the Company's product he was sent a copy of this edition. The allegations made in paragraphs 21 and 22 of the Petition, which I have summarised in paragraph 13(2) and (3) above, are clearly established.
39. I turn then to the second feature of the First Script to which I drew attention in paragraph 29 above. It was not only in the first telephone conversation with a potential advertiser that stress was laid on the connection with children's charities. The Annual Guide for 2003 bears the logos of 20 charities on the back cover under the heading "Here are just a few of the many charities that have benefited from the production of the Annual Business Guide 2003". In the list of contents they are referred to as "Supporting Link's Nominated Charities". The standard form letters pressing for payment supplied by Mr Simister to Mr Usher bear the legend at the foot of the page "Constantly working to benefit the needs of others". Those forms in use in the summer 2003, unlike those provided to Mr Usher, also bear a logo depicting three waving children. In this connection the name 'Supporting Link' itself implies a connection between the commercial activities of the Company and the children's charities referred to expressly or by implication.
40. It is not disputed that the Company did make donations to children's charities. In the accounting periods ended on 31st December 2002 and 2003 the amounts were £1,700 and £5,500 respectively, representing just under and just over 1% of turnover. Mr Usher's analysis of the Company's books identified donations of £10,550 in the year June 2002 to June 2003. It is in this connection that the seriousness or otherwise of the failure to comply with Regulation 7 of the Charitable Institutions (Fund-Raising) Regulations 1994 SI 3024/1994 must be considered. Compliance would have required the Company to make a statement indicating what proportion of the advertising charge or what sums were to be given to children's charities. The truthful answer would have disclosed "about 1%" or "£5 per full page of advertisement". In my judgment an advertiser would have regarded such proportions or amounts as disproportionately low when compared to the emphasis, both express and implied, placed by the Company on its own generosity.
41. In paragraphs 62 and 85(f) of his first affidavit Mr Usher referred to charities' logos being used without their consent. In paragraphs 66 - 74 of his first affidavit and paragraphs 126 – 136 of his fourth affidavit Mr Simister claimed that all the charities whose logos appear on the outside back cover of the Annual Guide for 2003 had given their consent. As he did not obtain such consents in writing he contacted all those he could in order to obtain corroboration for his contention. But the corroboration so obtained relates to what Mr Simister described as the Company's offer of free advertising for the Charity. None of the respective charity's representatives gave evidence and there is some correspondence to suggest that whilst the charity was happy to consent to the use of its logo as an advertisement for that charity it did not consent to the use of its logo to advertise the service provided by the Company.
42. The use to which the Company put the logos of those charities indicates that they were not being used to advertise the charity. Unlike the businesses that bought advertising space, the addresses, telephone numbers or other contacts with the charities were not given. Mr Simister was unable to explain why. In my judgment the charities did not consent to the use of their logos for advertising the business of the Company and that was the use to which they were in fact put when reproduced on the outside back cover and described in the contents page as Supporting Link's Nominated Charities. Accordingly I find that the ground for winding up summarised in paragraph 13(5) above has been established.
43. The ground for winding up I have summarised in paragraph 13(6) puts emphasis on the inclusion of the disclaimer rather than the intrinsic value of the editorial content of the Annual Guide. The relevant disclaimer is in the following terms:

"Please also note that while every care has been taken to ensure complete accuracy of editorial content, we cannot accept any responsibility for mistakes, errors or inaccuracies. Readers are strongly advised to check the information contained in this publication with institutions or seek legal advice where appropriate before acting on any information given in this publication."

I readily accept that any person reading the disclaimer would be likely to regard it as detracting from such utility as he thought the publication might otherwise have. But such disclaimers are not uncommon. I do not think that the use of a disclaimer is a ground for winding up either generally or in the circumstances of this case.

44. The last ground for winding up relied on is that which I have summarised in paragraph 13(7) above. The two matters relied on are (1) the misleading description of how the Annual Guide for 2003 was distributed given by Mr Simister to Mr Usher on 18th June and (2) the misleading description of the reason why the Company changed its name on 13th March 2003. I have dealt with the first matter in paragraphs 35 and 36 above. There is no doubt that Mr Simister's initial account was wrong. Having heard his evidence and that of Mr Usher, in particular his diary entry for 18th June 2003, I reject Mr Simister's explanation that he and Mr Usher were at cross-purposes. The intervention of his own solicitor shows that that was not the case.
45. At their meeting on 18th March 2003 Mr Simister told Mr Usher that he had changed the name of the Company by deleting the word 'Alliance'. He suggested that it had been included by mistake. At their later meeting on 18th June 2003 Mr Simister said that the change of name had been effected about a month previously and because the fact of Mr Usher's enquiry had leaked out and was causing embarrassment. When Mr Usher pointed out that the change of name had been effected on 13th March, some four days before the enquiry was even authorised, he agreed that the reason he had given was not true.
46. Thus on two separate topics discussed at their meeting held on 18th June 2003 Mr Simister deliberately sought to mislead Mr Usher. I accept that in respect of each of them Mr Simister gave, as alleged, evasive and contradictory replies. But the extent to which either of them hampered Mr Usher in the conduct of his enquiries appears to me to be minimal. I do not think that this ground for winding up adds anything to the others. Nevertheless these episodes show yet again how unreliable Mr Simister is.
47. In that connection I should refer to two further episodes of a similar nature. The first affidavit of Mr Usher set out in some detail (paras 39 to 41) the instructions given by Mr Simister to his staff and how some infringements were met by instant dismissal. He said nothing to Mr Usher at any stage of his investigation nor in any of his four affidavits about instantly dismissing Mr Marcus Barnes, then the National Sales Manager of the Company, and two of his associates in April 2003 for making misleading statements to potential purchasers of advertising space. Those statements related to the extent of the Company's connection with charities and were clearly relevant to the enquiry Mr Usher was making. This emerged for the first time in Mr Simister's cross-examination.
48. The fourth episode related to Mr Simister's claim in paragraph 56 of his fourth affidavit that the Company allowed advertisers a period of 14 or 30 days in which to consider whether to go ahead with the contract. There is no justification for such a contention in any of the documents produced by the Company nor in the general law as the person being solicited was not a consumer.
49. In summary I conclude that the grounds for winding up referred to in paragraph 13(2),(3),(4) and (5) are made out. I reject the ground referred to in paragraph 13(1). In relation to the grounds mentioned in paragraph 13(6) and (7), though made out in fact, I do not consider them to add anything. The question, then, is whether grounds 13(2)–(5) are such as to make it just and equitable to wind up the Company.
50. The proper approach of the Court is clearly established in the judgment of Nicholls LJ in Re Walter L. Jacob Ltd [1989] 5 BCC 244. That case concerned an authorised dealer in securities. Having authorised an enquiry under s.447 Companies Act 1985 the Secretary of State presented a winding-up petition. By then the company had ceased to trade because the relevant regulatory body had required it to do so. The judge dismissed the petition because he did not think that the public interest required the company to be wound up as it had ceased to trade anyway. The Court of Appeal considered that the judge had erred.
51. At page 250 Nicholls LJ described the balancing exercise involved in the following terms:

"In considering whether or not to make a winding-up order under sec. 122(1)(g), the court has regard to all the circumstances of the case as established by the material before the court at the hearing. Normally that will involve the court, faced with a petition presented by a creditor or a contributory, considering primarily the conflicting interests and wishes of the opposing parties to the petition, whether creditors or contributories or the company itself. The court will consider those matters which constitute reasons why the company should be wound up compulsorily, and those which constitute reasons why it should not. The court will carry out a balancing exercise, giving such weight to the various factors as is appropriate in the particular case.

In principle the exercise to be carried out where the petitioner is the Secretary of State is the same. The only difference lies in the nature of the reasons being put forward by the petitioner for the making of a compulsory winding-up order."

52. At page 251 Nicholls LJ expanded on this description. He said

"The court's task, in the case of so-called public interest petitions, as in the case of all other petitions invoking the court's winding up jurisdiction under sec. 122(g), is to carry out the balancing exercise described above, having regard to all the circumstances as disclosed by the totality of the evidence before the court. In respect of all such petitions, whoever may be the petitioner, the court has to weigh the factors which point to the conclusion that it would be just and equitable to wind up the company against those which point to the opposite conclusion. It is to the court that Parliament has entrusted this task, in all cases. Thus, where the reasons put forward by the petitioner are founded on considerations of public interest, the court, if it is to discharge its obligation to carry out the balancing exercise, must itself evaluate those reasons to the extent necessary for it to form a view on whether they do afford sufficient reason for making a winding-up order in the particular case.

In the case of "public interest" petitioners, the court will, of course, carry out that evaluation with the assistance of evidence and submissions from the Secretary of State and from other parties. When doing so the court will take note that the source of the submissions that the company should be wound up is a government department charged by Parliament with wide-ranging responsibilities in relation to the affairs of companies. The department has considerable expertise in these matters and can be expected to act with a proper sense of responsibility when seeking a winding-up order. But the cogency of the submissions made on behalf of the Secretary of State will fall to be considered and tested in the same way as any other submissions. His submissions are not ipso facto endowed with such weight that those resisting a winding-up petition presented by him will find the scales loaded against them. At the end of the day the court must be able to identify for itself the aspect or aspects of public interest which, in the view of the court, would be promoted by making a winding-up order in the particular case. In many, perhaps most, cases that will be a simple exercise in which the answer will be self-evident. In other cases the answer may not be so obvious."

53. At page 257 Nicholls LJ considered the circumstance that by the time the petition came to be heard the company had ceased to carry on the business of which complaint was made. In that respect he observed:

"Having regard to all these matters, I would have had no doubt, if the company had still been dealing in securities, that it was just and equitable that it should be wound up. Does the fact that the company ceased to carry on that business immediately before the petition was presented make a crucial difference? In my view it does not. It is, of course, an important factor to be taken into account. The investing public is no longer at risk from any future activities of the company. The company is no longer a member of FIMBRA. But it would offend ordinary notions of what is just and equitable that, by ceasing to trade on becoming aware of the net is closing around it, a company which has misconducted itself on the securities market can thereby enable itself to remain in being despite it's previous history. The wishes of those who control such a company, that it should remain extant for other purposes will, normally, carry little weight in the balancing exercise. On the other had, by winding up such a company, the court will be expressing, in a meaningful way, its disapproval of such misconduct. Moreover, in addition to being a fitting outcome for the company itself, such a course has the further benefit of spelling out to the others that the court will not hesitate to wind up companies whose standards of dealing with the investing public are unacceptable."

54. In this case it is suggested that the Company has ceased to carry on business in the manner of which complaint is made but that any doubt on that score may be resolved by accepting the undertakings offered by Mr Simister. The proffering of undertakings has been a feature of a number of recent cases. Thus in Re Vehicle Options Ltd (21st February 2002 unreported) Park J accepted undertakings with regard to the conduct of a franchised vehicle-leasing broker. The Secretary of State consented to the order. In Re Easy-Dial Ltd (16th September 2003 unreported) Neuberger J accepted undertakings on the basis of which the Secretary of State sought and was given leave to withdraw his petition. A similar order was made in Re Kanmar Ltd in April 2003 and by David Richards J in Re KTA Ltd (19th December 2003 unreported). By contrast undertakings were refused and the company wound up by Patten J in Re Equity and Provident Ltd [2002] 2 BCLC 78. In only one case has the court accepted undertakings and refused to make a winding up order where that course has been opposed by the Secretary of State, namely Re Adcom Ltd (Mr Anthony Mann QC, sitting as a deputy judge of the Chancery Division, 31st July 2002 unreported).
55. I do not doubt that the court has power to accept undertakings and, on that basis, to dismiss a petition to wind up presented to the court by the Secretary of State on public interest grounds. But it seems that earlier cases dealing with the exercise of such a discretion have been overlooked. Thus in Re Bamford Publishers Ltd (2nd June 1977 unreported) Brightman J was concerned with such a petition presented against a company carrying on business publishing trade directories without regard to the provisions of s.3 Unsolicited Goods and Services Act 1971. Undertakings were offered as to how the company's trade would be conducted in the future. Brightman J. concluded (transcript page 14)

"Quite clearly the Company has been engaged in a disreputable system of trading. The Company has offered a series of undertakings which are designed to secure that its future trading activities are free from objection. These undertakings are not acceptable to the petitioner. In case this matter goes to a higher court it may be helpful if I say something about the undertakings. First, the undertakings offered, assuming as I do that they were implemented, would in my view make the Company's trading activities free from legitimate complaint however useless those trading activities may be from the point of view of the public interest. The reason that I reject the undertakings is this. Petitions under Section 35 of the Companies Act 1967 are common. Many petitions go by default. A few are opposed. If it were open to a company to oppose a petition under s.35 on the basis that undertakings are offered to regulate the future conduct of the company's business, the Department of Trade would end with a mass of delinquent companies on probation. It is not the function of this Court, or at any rate of the Chancery Division, to police undertakings given to it except perhaps in the limited field of the welfare of infants. It is for the litigant to bring to the attention of the Court, if he so wishes but not otherwise, any activity which he considers a breach of an undertaking given to the Court If this Court accepted undertakings by a company, which is the object of a s.35 petition, there would be thrown upon the Department of Trade, and not upon the Court, the obligation of policing those undertakings. That is not the function of the Department. I take the view that the Court ought not to pay any attention to undertakings offered by a company, which is the object of a s.35 petition, relating to its future conduct owing to the burden which would thereby be thrown upon the Department of Trade, unless the Department is willing in a particular case that such undertakings should be accepted by the Court; and I do not think that the Department is under the smallest obligation to exhibit such willingness."

56. A similar principle was applied in cases under the Company Directors' Disqualification Act 1986 before its recent amendment by the Insolvency Act 2000. In Re Blackspur Group Plc [1998] 1 WLR 422 a director against whom such proceedings had been commenced offered the most extensive undertakings if the Secretary of State would refrain from pursuing the proceedings to judgment. His offer was refused and he sought an order staying the continuation of the proceedings as an abuse of the court. His application was dismissed by Rattee J and the appeal from him was dismissed. One of the reasons given by the Court of Appeal was that (p.433) "there is no statutory procedure for the policing and variation of...an undertaking..".
57. Similarly in Re Senator Hanseatische [1997] 1 WLR 515 the Secretary of State had presented a winding up petition on public interest grounds against a company carrying on an illegal lottery. Sir Richard Scott V-C refused the application of the Secretary of State for the appointment of a provisional liquidator; instead he granted injunctions. At p.526 Millett LJ accepted that it was necessary to procure the cessation of the company's business but indicated that he thought that the appointment of a provisional liquidator would have been preferable as putting "in place an independent officer of the court to take charge of the company's activities pending the hearing of the petition...".
58. In my view unless the Secretary of State is content that the petition is disposed of on undertakings the Court should be very slow indeed to accept them in preference to making a winding up order. All the reasons given by Brightman J in Re: Bamford Publishers Ltd remain as valid now as they were then. If the court is satisfied that the offending business has ceased and it is prepared to trust the existing management then it may be appropriate to dismiss the petition altogether. But if it is not so satisfied or does not trust the existing management then I find it hard to envisage a case in which it would be appropriate to dismiss the petition on undertakings as to the future conduct of the company's business.
59. Counsel for the Company started his submissions with observations on the relevant statutes and regulations. He submitted, as I have accepted, that s.3 Unsolicited Goods and Services Act 1971 did not apply in respect of any of the Company's publications. He emphasised that the Trading Standards Office of Northern Ireland had concluded that there was insufficient evidence to mount a prosecution for offences under the Trade Descriptions Act 1968. He went on to submit that therefore there was no deliberate wrongdoing. That, of course, does not follow. He pointed out, which I have already accepted, that a failure to comply with Regulation 25 of the Telecommunications (Data Protection and Privacy) Regulations 1999 SI 2093/1999 is not relied on as a ground for winding-up. But it is one of the material averments and the Company's failure to comply with it is relevant to the question whether an undertaking from the Company or Mr Simister could be acceptable.
60. Counsel then turned to the Charitable Institutions (Fund-Raising) Regulations 1994. He submitted that Mr Simister did not know about them and did not infringe Regulation 7 on purpose. I have dealt with this issue in paragraph 25 above. In my judgment Mr Simister did know that there were regulations, though I accept that he did not know their terms. I am unable to overlook the fact that on his own evidence he failed to take sufficient steps to find out what they provided or to ensure that the Company complied with them.
61. Counsel for the Company emphasised that Mr Simister had never suggested that the Company had not represented that it had made donations to charity. Such representations were true. By contrast, Counsel for the Secretary of State criticised the Company for selling its advertising space "on the back of charity". In my judgment both submissions are too extreme. The submission for the Company underestimates the impression conveyed by the Company's documents and conduct as to the extent to which it was connected with and supported children's charities. It was a great deal more than the level of contribution actually made would lead a potential advertiser to assume. The extent to which he and other members of the public are misled stems directly from the failure of the Company to observe the provisions of Regulation 7. By contrast the submissions for the Secretary of State imply that any sales pitch involving a representation that the publisher supports charity is improper. In my view that goes too far. If Regulation 7 had been complied with then there is nothing wrong with representing that a proportion of the publisher's profit is devoted to charity. In this case the Company's method of trading gave rise to a material misrepresentation as to the extent to which the Company supported charity in fact. I have no doubt that this was intended.
62. Counsel for the Company submitted that 5,000 copies of each edition of the Annual Guide for 2003 were printed. He contended that distribution in accordance with the delivery chart exhibited to Mr Simister's fourth affidavit sufficiently complied with the Company's obligation to its advertisers. For the reasons I have given in paragraph 38 I do not accept the latter submission. On Mr Simister's own evidence it is clear that the distribution he claims was carried out did not accord with what the advertiser was promised. For the reasons I have already given I do not accept that any such distribution took place. In any event the submission overlooks the fact that the various editions, which were printed, were not 'local', 'surrounding' or 'regional' in any sense relevant to an advertiser.
63. It follows from these central conclusions that the Company carried on business and took money from potential advertisers on the basis of material misrepresentations as to the extent of its donations to charity, the production of an Annual Guide which could be regarded as 'local', 'surrounding' or 'regional' by each and every advertiser and the distribution of such a guide throughout the geographical area of each edition. I am unable to conclude that any of those misrepresentations was made innocently.
64. Counsel for the Company emphasised that Mr Simister had shown financial prudence. As I have already observed, it is not suggested that the Company is insolvent or has failed to keep proper books of account. There is no suggestion that the money of the Company has been misapplied. Full provision has been made for crown debts. Thus many of the indicia of a dishonest business are missing. Counsel for the Company also emphasised the youth of Mr Simister, his contrition and his willingness to give extensive undertakings to the court in full knowledge of the seriousness of such a step and the consequences of not fully observing them. He invited me to give Mr Simister what both of them described as 'a second chance'.
65. The undertakings offered by Mr Simister on behalf of the Company and himself are substantially the same as those accepted by the Court when dismissing, by consent, the application of the Secretary of State for the appointment of a provisional liquidator. In summary they would undertake:

(1) to ensure that all orders for advertising space are made or confirmed in writing;

(2) to explain to all prospective advertisers the regional variations for which publications will be prepared and, on request, to provide a description of how the publication will be distributed in those regions;

(3) to distribute such publication by hand and by post throughout each region to relevant businesses within that region;

(4) not to make any representation relating to any charitable donation or contribution made by the Company or its directors;

(5) not to use the logo of any charity without its explicit written consent;

(6) to permit any person duly authorised by the Secretary of State to attend the business premises of the Company during normal business hours to inspect any records and the normal business operation of the Company.

66. I am unable to accept either those submissions or the undertakings. The business of the Company was founded and continued on the basis of deception. If, in accordance with the undertakings offered, the deception is removed it seems unlikely that the Company would have any worthwhile business to carry on. Further, the extent and nature of the undertakings and the past conduct of Mr Simister are such that it would be necessary for the Secretary of State, through his officers, to monitor due performance of the undertakings and to supervise the future conduct of the Company's business. That is not his or their function.
67. The matters to which I have referred show, in my judgment, that it is just and equitable that the Company should be wound up. The acceptance of undertakings from the Company or Mr Simister instead of making that order would be an abdication, not an exercise, of the Court's jurisdiction.
68. For all these reasons I will make the usual compulsory order.