England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Rolls Building 7 Rolls Buildings New Fetter Lane London EC4A 1NL
		23 November 2012

Judge Behrens:

1 Abbreviations

1. In this judgment I shall, with the consent of the parties, refer to the principal characters by the names by which they were referred to in the trial. Thus:

1. Dr Narisa Chauvidul-AW as Narisa

2. Khodsadavan Phongphongsavat as Rote

3. Laphat Wuttiwongyothin as Tua

4. Piyanant Chawalekyangkul (Rote's nephew) as Job

2 Introduction

2. This claim arises out of what Narisa claims was a joint venture in 2007 and 2008. The joint venture involved the provision of a Video Digital Online ("VDO") streaming service aimed primarily at members of the Thai community living outside Thailand.
3. It will, of course be necessary to consider the facts in detail later in this judgment. For present purposes it is sufficient to state that there is a dispute between the parties as to whether the idea for the joint venture was that of Narisa or Rote.
4. Narisa claims that the idea was hers and that the original VDO service was set up by herself and Tua and operated through the medium of DOOTV MEDIA Ltd ("Media") a company she set up in 2007. Narisa contends that there were discussions as to the involvement of Rote from about September 2007.
5. Rote claims the idea was his and the service was set up by himself and Tua and operated through the medium of DOOTV Ltd ("DTVL"), a Company set up in 2006 by Rote to promote the sale of CDs and DVDs. Rote accepts that Narisa assisted financially in the setting up of the venture and was also involved in negotiation and communication on his behalf with the Company who would provide the streaming. He, however, contends that she was to have no interest in the venture as a shareholder, partner or director.
6. It is common ground that some form of VDO service was provided from January 2008 using a domain - www.dootv.tv – registered to Rote. Payments from subscribers were originally made to a PayPal account set up by Narisa. It is also common ground that the PayPal account was changed in April 2008 and that in May 2008 Narisa applied for Media to be dissolved.
7. Narisa contends that it was agreed between herself, Rote and Tua at or about that time that the VDO service would be operated through the medium of DTVL and that it was further agreed that each would be entitled to a one third share in the business. Rote denies that he ever agreed that Narisa would be entitled to a one third share in DTVL.
8. Some form of VDO service has been operated from the domain www.dootv.tv since May 2008. It is not clear whether that service has been provided by DTVL, Job or DOO TV MEDIA COMPANY Ltd ("ThaiMedia") a company set up in Thailand by Job in 2011. It is Rote's case that after May 2008 the project was taken over by his nephew Job and that it has been Job's project since then. According to Job he had to carry out very substantial alterations to the web site. The PayPal receipts after April 2008 have not been disclosed by Rote or Job. However Narisa has managed to obtain some financial information which suggests that the site is now successful.
9. Between August 2009 and August 2010 Job paid Narisa a total of £12,600, rather more than the full extent of the financial assistance she made in 2007 and 2008. She, however, contends that she is entitled to more than just repayment. It is her case that she has a one third interest in the venture.
10. These proceedings were commenced on 17^th February 2011. Tua, Job and ThaiMedia are not parties. However the alleged involvement of Job and ThaiMedia did not emerge until the Amended Defence and the witness statements which were served on 17^th October 2012.
11. In the Particulars of Claim Narisa claims that she is entitled to one third share in DTVL on the basis of a contract between herself, Rote and Tua. She claims to be entitled to damages for breach of contract, an account of profits. In addition she claims to be entitled to rectification of the register of members under section 125 Companies Act 2006 so as to show Narisa as owning one third of the shares in DTVL. She also claims a declaration that as of September 2007 the business of DooTV was carried on by Narisa, Rote and Tua in partnership.
12. In the Amended Defence Rote and DTVL deny that there was the alleged agreement. In paragraph 15A of the Amended Defence they claim that the development of the business idea was stopped when Rote and Tua realised that they did not have the finance or technical ability to develop it further in order to create a viable and profitable digital on line business. At this point they allowed Job to take over the idea and took no further part in its development.
13. The trial commenced on 5^th November 2012 scheduled to last for 5 days. In fact it took a further half day. Mr Quinn opened the case on the basis that this was primarily a factual dispute which did not involve any questions of law. Narisa gave evidence on the second and third day of the trial. In the course of her cross-examination by Mr Silcott she accepted that she had had no actual discussions with Rote in April or May 2008 when the agreement was said to have been made. All her discussions were with Tua. On one view this evidence might be thought to present something of a difficulty to the pleaded claim but the case continued. The evidence concluded just before the midday adjournment on the fifth day. In his closing submissions, when pressed by me, Mr Quinn formally sought to amend the claim by adding what he described as a trust claim. He mentioned the decision in Cook v Deeks [1916] 1 AC 554. Mr Snow commenced his submissions late on the fifth day. Unsurprisingly the lack of any direct discussion between Narisa and Rote was at the forefront of his submissions. At this stage Mr Quinn rose to make it clear that it was his case that Tua was acting as Rote's agent. I made it clear that I would like to see any proposed amendment in writing and that I would deal with the application the next day. With commendable speed Mr Quinn e-mailed a draft Amended Particulars of Claim at 6.30 p.m on the fifth day. There were 3 proposed amendments:

1. That Rote permitted it to be represented that Tua had authority to act on his behalf and is thus bound by the acts of Tua in respect to his dealings with Narisa.

2. That Narisa's claim in addition was to "a one third share of the VDO whosoever the Defendants chose to operate the same".

3. That the Defendants were trustees of her one third interest in the VDO service howsoever they chose to operate it.

14. Unsurprisingly the applications to amend were opposed and I indicated that I would deal with them in the course of this judgment.
15. Job gave evidence on behalf of Rote and DTVL on the fifth day of the trial. English is not his first language. It is clear that he had a reasonable but by no means perfect understanding of English. In the circumstances he was assisted by an interpreter. In the middle of his evidence Mr Quinn halted the cross-examination and made an application for a without notice world wide freezing order against Job and ThaiMedia. When it became clear that I had concerns about the application it was adjourned until after the lunch adjournment. It had become clear that Job was returning to Thailand the following day. In those circumstances I permitted Mr Quinn to renew the application in the afternoon of the fifth day. Having heard submissions on the merits (on a somewhat different basis from the submissions earlier in the day) but before Mr Quinn had completed submissions on his proposed method of substituted service I refused the application indicating that I was not happy with the merits but that I would give reasons in this judgment.

3 The facts

3.1 The persons involved

Narisa

16. Narisa was born in 1969. She was educated in Thailand. She has degrees in accountancy and a Ph.D. She has had a mixed academic and professional career. She teaches part time at the LSE. In 1999 she became the Director and Founder of the ThaiSmile Group. This group comprises a group of companies which:

1. Created the first website in the UK providing all information about Thailand, Thai culture and Thai food. This website was sold to the Thai Tourism Board in 2001.

2. In 2001 published a Thai magazine (Thaismile) to provide up to date information to the Thai community outside Thailand. It has a circulation of 5,000 copies per month

3. In 2006 ran a modern Thai and Oriental Supermarket in Hammersmith

4. In 2007 opened a Thai restaurant in Holborn

17. In 2008 Narisa sold the majority of her shares in Thaismile and is now a minority shareholder. She describes herself as a "silent partner".

Rote

18. Rote was born in 1964 in Vientiane, Laos. He came to this country in the late 1980's when his father sought political asylum. He left school with limited qualifications and did not attend university. He initially worked in a Thai restaurant rising to Manager. He always had an interest in computers and in 2001 he set up a computer shop. He first met Narisa in 2005 when Thaismile bought computers from the shop.
19. In the course of his evidence Rote told me that he was the proprietor of a large number of domain names. One of these – registered on 16^th December 2005 was "www.dootv.co.uk"

Tua

20. Tua was born in 1969. He lives in Bangkok and works as an Independent Computer Technician Contractor. He came to the UK in 2003 under the auspices of a student visa to study. Whilst here he started a small business selling Thai DVD's and CD's to the Thai Community from Rote's computer shop.
21. Tua met Narisa and sold DVDs to her supermarket. He also rented a small area in the supermarket from which he sold Thai books and DVDs. There is a dispute (which I do not need to resolve) between Narisa and Tua as to whether Narisa had any interest in the business.

Job

22. Job was born in 1982. He is Rote's nephew and lives and works in Bangkok as a video streaming entrepreneur. He came to the UK in December 2005 to study computer studies and graduated.
23. Whilst in London he assisted Rote in his Computer shop. He was not paid a wage but when Rote was able Job was paid.
24. He remained in the UK for 4 years returning to Thailand in December 2009.

3.2 Companies

25. It is convenient to set out here some material facts in relation to the three corporate entities involved.

DTVL

26. DTVL was incorporated on 21^st September 2006. Initially it had 2 directors – Rote and Tua. However Tua resigned on 3^rd October 2006 as a result of restrictions attached to his student visa. Rote's wife was named as Company Secretary.
27. DTVL is registered as the proprietor of at least 2 domain names which play a part in this case – "dootv.tv" registered on 16^th October 2006, and "dootvmedia.com" registered on 11^th June 2007.
28. According to both Rote and Tua DTVL was set up as a result of discussions between them to carry on the business of selling DVDs and CDs both on and off line.
29. The filed accounts show DTVL to be a modest concern. Thus the figures for 2010 show an operating loss of £70 based on a turnover of £65,000. The balance sheet shows net liabilities of £4,248. However Narisa contends that these figures do not represent the true position. When he gave evidence Rote said that figures in relation to the VDO streaming business were not included in these figures.

Media

30. Media was incorporated on 13^th June 2007 some 2 days after registration of the domain name "dootvmedia.com". Narisa and Tua were appointed as Directors. Tua has alleged that his signature on the Form 288a signifying his consent to act has been forged and that he was never validly appointed.
31. In July 2008 the Directors applied for Media to be struck off the register. Tua alleges that his signature on that form has also been forged. On 20^th January 2009 Media was dissolved.

ThaiMedia

32. ThaiMedia was incorporated in Thailand on 1^st March 2011. There are two Directors – one of whom is Job. Job said he was a 51% shareholder in ThaiMedia. He is the only signatory on official documents. He said that his co-director works part time. There are 10 employees who deal with a number of projects. DooTV is only one such project. He estimated that only one or two people worked on the web site.

3.3 The parties accounts

Narisa's version

33. There is a factual dispute as to how the VDO business commenced.
34. Narisa says that in early 2007 she came up with the idea of starting a new business offering a VDO service to Thai people to watch Thai movies, news and other content over the internet. She was aware of a similar business in the US but there was no UK based similar business.
35. She approached Tua as he had more IT experience than her. After discussing the idea they agreed to go into business together. It was agreed that Tua would look after the IT side of things (setting up the website and programming) whereas she would look after the marketing and the PR side of the business. It was agreed that Narisa and Tua would share equally in the venture.
36. Tua told Narisa that they could use the domain name www.dootv.tv. He said that he and his friend Rote had already registered this domain name. However it was not being used.
37. As already noted, Narisa (and possibly Tua) incorporated Media on 13^th June 2007. The invoice for the purchase of a limited company was sent to Narisa's husband and paid for by Narisa as "director".
38. It is Narisa's pleaded case that in September 2007 Narisa, Rote and Tua agreed that Rote would join Media and that the three of them would operate the VDO service. It is further pleaded that they agreed that the business would be split such that each of them would be entitled to a one third share. Rote was not made a director of Media but it was agreed that that he owned a third share of that company.
39. The position changed, according to the Particulars of Claim in about May 2008. Following discussions between Narisa and Tua Media was disbanded and the VDO service was operated through DTVL.
40. In paragraph 13 of her first witness statement Narisa puts the matter rather differently:

A few months later, in around September 2007, [Tua] told me that he would like [Rote] to join our business as a partner, because Rote owned a computer shop and could provide us with technical and financial assistance. He told me that in his view it would be better to let Rote manage the business and that we should run the business through another company so that Rote could be a director. I suggested that we should make Rote a director of Media but they did not agree. I therefore agreed to their suggestion and we all agreed that the business would now be split between us and we would each have a one third share in the business … I assumed that Rote would set up a new business and he would register Tua and me as shareholders.

41. In paragraph 15 she says:

… Tua told me that Rote had suggested that we should disband [Media] and combine the business with Rote's business which sold DVDs on line via the website www.dootv.co.uk . He said this would streamline the two businesses. It was clear to me that that the VDO service would continue and my role as an investor in the business would continue and that I would continue to have a 33.33.% share in this side of the business. … I agreed to disband [Media] and to relinquish my role as director in the business. However it was agreed that I retain my 33.33% share in the business and Tua told me that Rote would register us as shareholders in the Company …

42. In cross-examination Narisa agreed that she did not really know Rote. She had not worked with him closely before. She said that when there were discussions with Tua in September 2007 Tua said that they did not have to deal with the question of shareholding then. When she told Tua that she would offer Rote a directorship of Media he said that he would talk to Rote. Later in April 2008 Tua said that they should use Rote's company (i.e. DTVL) as Rote would be more hands on. She said that she told Tua that if he wanted to bring in Rote the shares had to be split equally.
43. She accepted that that she would only be entitled to a share in the VDO business and that she was not entitled to any part of the business relating to the sale of DVDs and CDs. She said that she expressly discussed having a share of the business with Tua and that she was to be made a director and shareholder. It never happened.
44. Narisa agreed that she had no direct discussions with Rote as to a joint business. She agreed that there was no direct discussion when Rote agreed that she would have a one third share. She did not carry out any due diligence on DTVL. She said this was a matter of trust. There is no written note or other contemporaneous document in respect of the discussions.

Rote's version

45. Rote's case is very different. In his witness statement he says that in 2004 Tua commenced a business selling Thai DVDs and CDs to the Thai community from his computer shop. They decided to change the name of the business to DooTV and he incorporated DTVL in September 2006. He also registered the domain name www.dootv.tv as an online website to sell CDs and DVDs. Rote says that he came up with the idea of converting DVD's so that they could be watched on line via a website so as to provide additional income for them. He came to the conclusion that the best way to achieve this would be to use set top technology to deliver such content to subscribers.
46. As a result both he and Tua sourced T2eUK to try to develop this set top box technology and to host the on line streaming. There were problems with T2eUK with set top box delivery dates and the availability of the technology.
47. Rote accepts that Narisa assisted the business financially and helped to pay a number of invoices. There were no discussions that by doing so she would become a shareholder and she was never made a director. Rote thought that she was simply helping by providing interest free loans as between friends.
48. Rote says that the business failed. He did not have the finance or the knowhow to make the idea work or to turn it into a viable business.
49. Rote says that he was unaware that Narisa had formed Media. Indeed it was his idea to trade the VDO service under the name DooTV Media basing the name on Virgin Media. It was for that reason he registered the domain name www.dootvmedia.com . He discovered about Media when he attempted to incorporate a company of the same name. He was surprised to see Tua as a director of Media but was told by Tua that his signature had been forged on the Company formation form. He has no knowledge as to why Media was dissolved. He was not involved.
50. Rote deals with the position of Job in paragraphs 22 to 25 of his witness statement. In summary he says that once he had given up the idea of developing the business he had a discussion with Job who told him that upon his return to Thailand he would start up his own VDO business. Rote consented to this and was happy to offer him the benefit of his experience. He did not consider that Job was taking over his business and permitted him to use the domain name www.dootv.tv. Rote thus contends that the current business belongs to Job and/or ThaiMedia. He accepts that he has become "a form of UK representative" for Job's company and that he receives the income from advertising, credit card sales and gift card sales. However subscription payments via PayPal are paid to ThaiMedia and are not paid to Rote or DTVL.
51. Rote was cross-examined for more than a day. Like Job some of his evidence was given in English and some through an interpreter. Mr Snow reminded me to be cautious about being too critical of Rote's evidence as English was not his first language. I bear this in mind. However there were a number of inconsistencies in his evidence. For example he confirmed that Job did not return to Thailand until December 2009 whereas according to his case Job was running the business from May 2008. He had no real explanation as to why the original PayPal account was set up by Narisa in the name of Media or why invoices were signed as paid by Narisa in her capacity as Director. Despite these inconsistencies he maintained the essence of his case. First he denied that he had ever agreed that Narisa would have a one third share in the VDO streaming business. Second he asserted that the VDO business now operating from www.dootv.tv was quite different from the one he and Tua commenced in January 2008. The current business belonged to Job and/or ThaiMedia.

Tua's evidence

52. Tua provided a witness statement but did not attend the trial. I was told (and have no reason to disbelieve) that he was unable to obtain a visa. In the result his evidence was not tested by cross-examination.
53. In paragraph 6 he asserted that it was Rote's and his idea to convert DVDs on line to derive an income and to use a set top box to deliver content to subscribers. In paragraph 7 he confirmed that Rote carried out research in to servers and he sourced T2eUK as a suitable company to provide bandwidth. He asked Narisa to help with communications with T2eUK because of difficulties with written English. Although Narisa signed the contract he did not consider her a shareholder. He asserted that there were no discussions with Narisa as to investment by her or a share of the business. There were difficulties with T2eUK and Tua asserted that the business failed. He accepted that Narisa contributed to expenses he regarded these as loans. After the failure of the business he prepared a spreadsheet setting out the expenses. They have all been repaid by Job.

Job's evidence

54. Job provided a witness statement which substantially corroborated that part of Rote's statement which dealt with his discussions with his uncle following the "failure" of the initial project. He confirmed that his uncle receives three income streams but that his business in Thailand receives the remainder of the income. He points out that the majority of the expenses are born by his business. He asserts that the two businesses are separate and that he has absolute control over the income streams in Thailand and no-one else can access them.
55. He had very limited dealings with Narisa and regarded Rote and Tua as the owners of "the business".
56. Job was cross-examined for about an hour although, as I have indicated, the cross examination was interrupted when Mr Quinn started to make a without notice application for a world wide freezing order against Job and ThaiMedia.
57. In the course of the cross-examination he was invited to disclose details of the PayPal receipts from April 2008. He refused to do so. He said that he was here as a witness for his uncle and the figures were confidential to ThaiMedia.
58. He explained that Rote had provided the domain name. He said that Tua used the web site but it was not successful. He confirmed that he had changed the PayPal account in April 2008 but said he did not know it had been registered in the name of Media. He accepted that there was some income before April 2008 but said that it was small and that there were expenses to pay.
59. He said that it was in April or May of 2008 that he made improvements to the site. When asked to detail the improvements he said that he had:

1. restructured the website

2. changed the navigator

3. completely redesigned the graphics

4. provided new video technology

5. obtained new advertising

6. installed a Google search engine

7. installed a contents management system

8. reprogrammed the database.

60. He agreed he had made repayments to Narisa from the PayPal account. These were made at the request of Rote who had been helpful to him.

3.4 Other evidence

61. In addition to the parties' accounts as summarised above there was a significant amount of other evidence which it is necessary to summarise:

Design of web site

62. On 20^th June 2007 a Thai Company – Billion Tech Co Ltd ("IDCB") sent an invoice to Tua (dootvmedia LTD) addressed to 283/287 King St Hammersmith (the address of the ThaiSmile supermarket) for Baht 88,000 (£670) in respect of a streaming web application. The invoice appears to be countersigned by Tua. In any event it was paid on 21^st June 2007. It was endorsed "Paid by Director (Narisa)".
63. I was referred to a number of e-mails sent between 14^th and 20^th July 2007 involving IDCB relating to the design of the web site and the date when it would be completed. Narisa relies on the fact that they are exchanged between herself and IDCB and that Tua was copied in. Rote was not copied in to this e-mail exchange.

Streaming Delivery

64. T2eUK Ltd ("T2eUK") and Prostream Ltd are two associated companies within the same group. Mr Jamie Branson, who gave evidence, was a director of each and for the purpose of this litigation it is not necessary to distinguish between them. In this judgment I shall simply use the abbreviation T2eUK even though some of e-mails emanate from Prostream. They provide a number of services including hosting and delivering online video streaming.
65. In any event on 31^st July 2007 T2eUK e-mailed a streaming proposal for DOOTV to Tua and Rote. The customer was described as Tua. It was addressed to DTVL at 107 Roman Road, Bethnal Green (the offices of DTVL) giving its correct company registration number. In outline the proposal was:

…to provide a 24 hour internet TV stream which will consist of a pre-recorded video loop designed to encourage viewers to subscribe and view the on demand content that is available on a pay to view arrangement

Viewers will be able to access the channel via the web and a set top box arrangement

The stream will be relayed with full load rebalancing via our streaming platform to a maximum of 100 concurrent people for the free content …with unlimited viewers on the paid account.

66. In cross-examination Narisa accepted that Tua visited T2eUK before she was involved even though Mr Branson had no recollection of this.
67. On 1^st August 2007 T2eUK submitted an invoice to DooTV, 107 Roman Road for £9,167.36. On 3^rd August 2007 this invoice was paid by Narisa and endorsed "paid by director". It is common ground that some time after this Tua and/or Rote paid Narisa £4,600 – that is to say half the invoiced sum.
68. Between 1^st August 2007 and October 2008 there is extensive e-mail correspondence between T2eUK/Prostream and Narisa. Much of it is copied to Tua and Rote. It is plain from this correspondence that Narisa took an active part in the discussions with T2eUK. Part of the explanation for this was that Narisa's English was better than Tua's (or Rote's). However it is clear from the correspondence that her involvement went beyond that of an interpreter.
69. In an e-mail dated 8^th August 2007 Narisa described Tua as "my business partner". Tua did not comment on this.
70. It is clear from the e-mails in November 2007 that there were problems with delivery of set top boxes and other delays. Thus on 8^th November 2007 Narisa e-mailed T2eUK. She referred to long discussions she had had with Tua, to the delays and the problems with the supply of set top boxes. She asked if they could cancel the existing contract and use the money already paid for a different proposal involving the development of "our own platform to suit us".
71. After some discussion further terms were agreed. On 28^th November 2007 T2eUK sent to DTVL at 107 Roman Road a quotation "Proposed Management Streaming Server Costs". The quotation was for a minimum period of 12 months at a rate of £1,275 per month. On 29^th November 2007 Narisa signed acceptance of the quotation as a director and on behalf of Media. As already noted Rote has no real explanation for this document.
72. The first communications between Job and T2eUK commence in early May 2008. It is not necessary to go into detail but there were technical problems (described by Job as critical) with space on the server.
73. As a result of these problems a decision was made to cancel the contract with T2eUK. I was referred in particular to two e-mails sent by Narisa to T2eUK on 1^st October 2008.
74. The e-mail timed at 15:51 includes the following:

My partners and staff who work at IT side asked me to write to you regarding the services provided by you to Dootv recently …

As discussed by my partners I would reluctantly like to inform you that DOOTV would like to finish the contract starting from 5^th October.

75. The e-mail timed at 20:05 includes the following:

Thank-you for the e-mail. I understand your points. However I have to leave the issue with Tua and [Rote] and their team to make decision.

The project is now moved to another company of [Rote]. My involvement now is just a silent investor in the project. I put some money there, leave it and see how it goes. I am no loner the director who manages the website.

I emailed you on behalf of them due to their language barrier and I have dealt with you before.

76. Following this exchange of e-mails the server was changed to UK2.net.
77. Mr Branson sets out his impression of the role played by Narisa, Rote and Tua in paragraphs 4 to 6 of his witness statement. He assumed that Narisa was the senior partner in the business; Tua told him that Narisa would deal with finances and she was the contact for non technical aspects. She seemed to be in charge of all non technical aspects. He regarded Tua as the technical specialist. He was less sure of the role of Rote. He thought he became involved later on and acted unprofessionally after the contract was terminated.
78. In cross examination he did not change his opinion. He described Narisa as the business front dealing with finance and Tua as the inventor. He was not aware that there were two companies involved but made the point that he would not be dealing with that aspect of the matter.

PayPal

79. On 29^th November 2007 PayPal acknowledged an application by Narisa (tv@thaismile.com) for setting up bank funding via PayPal in the name of Media. In paragraph 15 of his witness statement Rote said that neither he nor Tua had a PayPal account so that they had no option but to use Narisa's account. However in cross examination Rote admitted that he had set up a PayPal account for the sale of DVDs in April 2007. He said that he did not want to mix the income from the streaming business with that from the DVDs. He did not explain why he could not have set up a new PayPal account.
80. Payments were received by Narisa on this PayPal between 2^nd January 2008 and 15^th April 2008. Around that date Job changed the user name details to info@dootv.co.uk. As already noted Job has refused to disclose records of PayPal receipts since then. Rote has said that he does not have access to them.
81. In her second witness statement Narisa says that in July 2009 she was provided with the log in details for the web site and she was able to download records in respect of payments for the 6 week period between 1^st May 2009 and 10^th June 2009. Her analysis of those figures shows that the total revenue for the 6 week period (prior to the percentage deducted by PayPal) amounted to £24,326.60. She commented that it showed that the business had started to attract new customers. She has not been able to obtain any figures after that date because the password has been changed.
82. Narisa has also managed to obtain via Google Analytics information regarding visits to the site between April 2008 and April 2009. These figures show a gradually increasing number of visits from about July 2008. She also managed to obtain a document entitled Doo TV Actual Daily Sales for the period from Jan 2008 – September 2009. It gives the following information:

Doo TV Daily Sales	Doo TV Daily Sales	Doo TV Daily Sales
	2008	2009
Jan	£204.50	£193.50
Feb	£47.50	£214.75
Mar	£57.00	£295.25
Apr	£69.00	£401.50
May	£52.00	£694.75
Jun	£93.25	£860.40
Jul	£48.25	£1,016.30
Aug	£110.25	£1,620.45
Sep	£109.50	£2,642.35
Oct	£67.75	£3,300.00
Nov	£107.50
Dec	£202.75

83. It is not clear where the figures came from but they represent the best evidence currently available to the Court.
84. An analysis of the figures shows

2008	Daily	Days	Sales	Total
Jan	£204.50	31	£6,339.50	£6,339.50
Feb	£47.50	29	£1,377.50	£7,717.00
Mar	£57.00	31	£1,767.00	£9,484.00
Apr	£69.00	30	£2,070.00	£11,554.00
May	£52.00	31	£1,612.00	£13,166.00
Jun	£93.25	30	£2,797.50	£15,963.50
Jul	£48.25	31	£1,495.75	£17,459.25
Aug	£110.25	31	£3,417.75	£20,877.00
Sep	£109.50	30	£3,285.00	£24,162.00
Oct	£67.75	31	£2,100.25	£26,262.25
Nov	£107.50	30	£3,225.00	£29,487.25
Dec	£202.75	31	£6,285.25	£35,772.50
2009
Jan	£193.50	31	£5,998.50	£5,998.50
Feb	£214.75	28	£6,013.00	£12,011.50
Mar	£295.25	31	£9,152.75	£21,164.25
Apr	£401.50	30	£12,045.00	£33,209.25
May	£694.75	31	£21,537.25	£54,746.50
Jun	£860.40	30	£25,812.00	£80,558.50
Jul	£1,016.30	31	£31,505.30	£112,063.80
Aug	£1,620.45	31	£50,233.95	£162,297.75
Sep	£2,642.35	30	£79,270.50	£241,568.25
Oct	£3,300.00	31	£102,300.00	£343,868.25

85. Thus sales for January 2008 were quite good (£6,339) but then fell off significantly so that by the end of May (when Narisa applied to dissolve Media) the total sales were only £13,166. Sales started to pick up in August 2008 and by the end of the year total sales amounted to £35,772. Sales continued to pick up and started increasing strongly from about April 2009. The value of sales in October 2009 alone was £102,300 and the total value of sales for the 10 months ending October 2009 was £343,868.

The Spreadsheet

86. In paragraph 12 of his witness statement Tua states that after the failure of the online business Narisa wanted repayment of her expenses. Accordingly he prepared a spreadsheet setting out the expenses of the business and the contribution made by the parties. In her second witness statement Narisa states that she prepared the initial version of which she e-mailed to Tua. She then had discussions with Tua as a result of which he amended it.
87. The spreadsheet is dated 11^th April 2008 and appears in two places in the bundle in a slightly different form. The principal difference relates to one sum of £1,700 paid in respect of the quarterly streaming charge for April – June 2008. The charge amounted to £5,298 and it is common ground that Rote and Tua paid £3,598 of that charge. On one version of the spreadsheet Narisa paid the balance of £1,700. On the other it was paid by DooTV.
88. The spreadsheet is partly in Thai and partly in English. I have been provided with an agreed translation of the passages in Thai. It has columns for the items of expenditure, for the total cost for payments by Tua/Rote and by Narisa and DooTV. It also has two blank columns headed 33% and 67% respectively. In her witness statement Narisa said that she prepared them to reflect the fact that the three of them had equal shares in the business. Tua did not object to the headings although as I have said the columns are blank.
89. In summary the spreadsheet shows that total expenditure was £41,851.89, that Narisa made payments totalling £9,900 or £11,600 (depending on the version) that Rote/Tua made payments of £27,219.14 and that DooTV made payments of £4,731.18 or £3,031.18 depending on the version.
90. The spreadsheet shows that payments were made to Job totalling £5,100 in respect of the period September 2007 – April 2008. When Job gave evidence he accepted that he had received payments but asserted that it was less than the sums referred to in the spreadsheet.
91. As already noted the spreadsheet was primarily a document prepared as between Narisa and Tua. There is no evidence that Rote had any part in its creation. When he gave evidence he said that he did not see it until disclosure in these proceedings.

Narisa's role – 999tv.tv

92. In addition to the provision of finance and her role in relation to T2eUK and IDCB Narisa alleges that she provided some marketing services for the venture. In fact, as Mr Snow pointed out in closing speech those marketing services were limited. She placed a free advertisement in successive editions of the ThaiSmile magazine, and she distributed some gift cards to a colleague - Mr Chaletorn – in Sweden.
93. In 2009 Narisa had a conversation with Mr Chaletorn in which she said that Rote had cut her out of the business. Mr Chaletorn indicated that he had been interested in the past in setting up a similar business and asked if she would mind if he set one up now.
94. In September 2009 Narisa agreed to invest some £50,000 in the business and provide some help and advice. She was duly registered as a shareholder and director. She advised Mr Chaletorn on how to register a UK company. She put him in touch with Tua who provided both content and technical assistance for the venture which traded from the domain www.999tv.tv . Tua was paid £100 per month for his help. Although the content is by no means identical to that provided on www.dootv.tv much of it is similar and it is clear that it was a direct competitor of www.dootv.tv.
95. According to Mr Chaletorn who gave evidence on behalf of Narisa, Rote complained to Tua when the price for the subscription undercut that of www.dootv.tv. As a result Tua stopped helping. After about 6 months Mr Chaletorn disbanded the business. Amongst other matters he was concerned about copyright issues. In any event Narisa lost her investment.

Repayment of investment

96. It is common ground that a total of £12,600 was repaid to Narisa by Job out of the PayPal account on differing dates between August 2009 and August 2010. In his witness statement Rote asserts that the amount to be repaid was agreed between Narisa and Tua and based on the figures in the spreadsheet. He now contends that there has been an overpayment of £2,699 and there are proceedings in the Brentford County Court to recover this sum.
97. As payments were made by Job at Rote's request out of moneys that he says were his it is difficult to see what cause of action Rote or DTVL have even if there was an overpayment.

Discussion – e-mail in late 2009.

98. Narisa agreed in cross examination that she had only had one or two meetings with Rote. On being shown e-mails she accepted that the first meeting may have been in August 2009 at about the time repayments started. In any event it was common ground that there was no discussion about DooTV even though Narisa wished to discuss her concerns.
99. Narisa says that she spoke to Tua in late 2009 to discuss her concerns. Tua told her that as a result of Rote's input and the fact that Narisa was no longer involved Rote had decided that her share was to be reduced from 33% to 5%.
100. On 5^th December 2009 Narisa e-mailed Tua with her concerns. The email included (in the agreed translation):

I believe [Rote] does not have any right to decide by himself how many shares each of us should have in Dootv. As we agreed in the beginning, I and you were the only partners and we each had 50% share in the business. Then you said you wanted [Rote] to join us as a new partner and we would share one third equally in the business. I was ok as I respected and trusted in your decision making. At that time when each of us paid for any costs, we recorded our payments as loans from shareholders. And we discussed that whenever the business has money or when it was ready to pay, we would be reimbursed for what we paid for. I believe by now everyone received all the money back already.

When we started we registered company [Media] together. We had 50% shares each. Later you said we should use [Rote's] company and he would add us as shareholders in his company. ([Rote] never registered us as shareholders). Then you said that was ok. We trusted each other. I was ok. But in my heart I would prefer him [Rote] to register us as agreed.

101. Tua responded the same day. The email included (again as translated):

In fact there has been no decision about the shares. … [Rote] has been working very hard managing the servers and the bandwidth. … He is thinking of the staff and the team first … I also want more shares like you. Actually you are the only partner who received reimbursement. We save money to have office in Thailand. … [Narisa] you do not have to worry. If this business is doing well you will get something. And when that time comes, probably in the year 2010 we can see everything clearer.

Correspondence

102. It is not necessary to refer to the pre-action correspondence. It is right to record that up until 8^th October 2012 Rote and DTVL were acting in person. They did have assistance from D T Paul who has an LLB and plainly some knowledge of the law. Mr Paul drafted the original Defence. In December 2011 Narisa's solicitors made a written request for specific disclosure mainly in respect of the PayPal transactions. Mr Paul drafted the letter of reply which was signed by Rote on 6^th January 2012. The letter is 8 pages long. It alleges that the claim is misconceived and that the request is a fishing expedition. It however contains two paragraphs upon which Mr Quinn relies and which he read to me at least 3 times during the course of the trial:

[DTVL] bears no resemblance to the Entity that commenced in business several years ago without I may add any assistance or contribution from [Narisa] who eposes her ignorance and lack of knowledge or active participation in the affairs of [DTVL] by her request for specific disclosure

A stratagem was developed and adhered to by [Rote] and his colleagues. Associates and Team members from the inception that the infrastructure of the overall entity would be spread over several jurisdictions and be ring fenced with Chinese walls and protected from possible claims or actions or losses and to assist in national and international tax avoidance as opposed to evasion. Accordingly the loss or disappearance of one part would not affect the other parts of the entity. Legal judgment against one member or part or person of the Entity would not impact o encroach the viability and the continuation of the whole. The entity is continually metamorphosing. [DTVL] whilst not on the same par as other well known Multi-Nationals who have varied multi national branches is merely a small cog in a larger entity.

103. It is not clear precisely what is meant by the jargon in those paragraphs. However it is not in the least surprising that Mr Snow and Mr Silcott should seek to distance themselves from the sentiments which appear from them. They make the point that that letter does not really assist in determining what happened in 2007 and 2008.

4 Findings

4.1 The initial arrangement

104. I have come to the clear conclusion that Narisa was directly involved as a participant in the initial venture. In my view the documents overwhelmingly support her case. Without repeating what is set out above the following factors seem to me of particular importance:

1. The setting up of Media. I cannot begin to think why she would have set up Media if she had not been involved.

2. The payments made by Narisa. Whilst it is possible that these were informal loans I agree with Mr Quinn that it is far more likely that it was a loan to the set up by one of the "partners" as Narisa explained in her e-mail of 5^th December 2009. If they were just loans why would Narisa record that they were paid by her as a Director? Why would she sign the agreement with T2eUK as Director of Media? I also agree with Mr Quinn that it is significant that out of the initial payment of approximately £9,200 paid to T2eUK on 3^rd August 2007 she received £4,600 from Tua. To my mind that is a clear indication that Narisa and Tua were sharing costs equally – at least at that stage.

3. Narisa's involvement with T2eUK. No doubt one of the reasons why Narisa was involved with T2eUK was that her English was better than that of Tua and Rote but it is quite clear both from the e-mails and from the evidence of Mr Branson that at least up to April 2008 she was far more actively involved than a mere interpreter. She was actively involved in decision making. Her role as a decision maker had, however, ceased by October 2008 as can be seen by her e-mail at 20.05 on 1^st October 2008.

4. The references in the e-mails to Narisa as a partner. Whilst it is of some significance that Narisa made a reference to her partner or partners in the two e-mails mentioned above it is, to my mind of particular significance that in the e-mail of 5^th December 2009 Tua referred to Narisa as "the only partner who received reimbursement".

5. The Spreadsheet. I agree with Mr Quinn that the spreadsheet does give an indication of the position as between contributories as at April 2008. [It, of course, is of no assistance as to what was agreed after that date.] If, as Rote contends, these were informal loans from a friend it is difficult to see why it should have been drawn up in that fashion.

105. The document which supports Rote's case is of course the proposal sent by T2eUK to Tua on 31^st July 2007. Mr Snow naturally relied on this document and drew it to my attention in his closing submissions. As he pointed out it refers to DTVL giving its correct company registration number and was addressed to DTVL's office address. Furthermore it is common ground that either Rote or Tua sourced T2eUK and that the first meeting with T2eUK did not involve Narisa. It is plain that the address given to T2eUK at that meeting was that of DTVL. However Narisa was plainly kept in the loop as it was Narisa who replied to the e-mail on 1^st August 2007 and Narisa who paid the invoice (on behalf of Media) on 3^rd August 2007.
106. It may well be that there was a separate arrangement between Rote and Tua under which there was a partnership between them. The use of DTVL suggests that there was. It may well be that Rote contributed 50% of the sums paid by Tua. It is not without significance that the Spreadsheet does not appear to distinguish between contributions from Tua and Rote. It is also possible that Tua did not mention Narisa's involvement to Rote. He did not after all mention Rote's involvement to Narisa until at least September 2007. There were, after all, no discussions between Narisa and Rote.
107. I am accordingly satisfied on balance of probabilities that there was an initial agreement between Narisa and Tua that the VDO streaming business would be carried out by Media and that Narisa and Tua would each be entitled to a 50% shareholding in Media. It is unnecessary for me to make any finding on the arrangement between Tua and Rote and I prefer not to do so. Equally it is unnecessary for me to make any finding as to whether Tua's signature on the company registration forms was forged and if so by whom.

4.2 The Agreement in April/May 2008

108. There is, of course, far less material in relation to the events of April and May 2008. However a number of matters seem to me to be material. At that time the venture did not appear to be prospering. As the Spreadsheet shows the parties had invested £41,851.89 in the venture. Based on the document obtained by Narisa the total sales to the end of March were only £9,484 and by the end of May were only £13,166. Furthermore the daily rate of sales was not improving. In addition there were significant problems with the server – as demonstrated by the emails sent by Job starting in May 2008 and culminating in the e-mails of 1^st October 2008 terminating the contract with T2eUK. Substantial further investment was needed in the software. There is, in my view no reason to doubt the evidence of Job in relation to the significant improvements to the site. Those improvements would have cost significant sums if they were to be paid for by Media. According to the Spreadsheet Job had been paid £5,100 up to April 2008. In those circumstances it is not difficult to see why both Rote and Job describe the venture as a failure as at that date. To my mind this is supported by the fact that Narisa dissolved Media.
109. There is not a single document which supports Narisa's case that Tua agreed that she would be entitled to a one third share in DTVL.
110. As already noted the Spreadsheet is neutral in that it was drawn up in April 2008. It gives no indication as to what is to happen in the future.
111. In her e-mail of 1^st October 2008 to T2eUK she described herself as "a silent investor in the project. I put some money there leave it and see how it goes". To my mind that description is not consistent with her case which, as I understood it, did not involve a change in her role from active participant to "silent investor".
112. The e-mail to Tua of 5^th December 2009 is equally inconclusive. The relevant part reads:

Later you said we should use [Rote's] company and he would add us as shareholders in his company. ([Rote] never registered us as shareholders). Then you said that was ok.

113. Nowhere does she allege that Tua said that she would have a one third share in DTVL. Tua immediately responded by saying that there had been no decision about the shares. Significantly Narisa did not reply.
114. There were, of course, no discussions between Narisa and Rote in relation to this agreement. It is a remarkable feature of this case that Narisa, a highly qualified accountant with a Ph D from the LSE and significant business experience both in auditing and with ThaiSmile should allegedly enter into a contract with Rote for the transfer of a one third shareholding in DTVL without any discussions with Rote and without making any written record of it or referring to it in any document.
115. In the course of his submissions Mr Quinn was highly critical of Rote as a witness. Many of the criticisms had considerable force and, as has appeared from the previous section I have not accepted Rote's case as to Narisa's involvement in the setting up of the business.
116. However it is also right to comment that Narisa's case has not been wholly consistent. Three examples will suffice:

1. There is a difference between the pleaded case and paragraph 13 of Narisa's witness statement. In the pleadings it is suggested that in September 2007 it was agreed that Rote would join Media and they would each be entitled to a one third share. In her witness statement she says this was not agreed.

2. There is in my view a difference between her pleaded case as to her role in DTVL and what she said in the e-mail of 1^st October 2008 to T2eUK.

3. In my view the pleaded case and the witness statement suggests that there was a direct agreement between Narisa and Rote. Paragraph 13 contains the words "we all agreed". It was only during the course of cross-examination that it became apparent that there were no discussions between Narisa and Rote.

117. In those circumstances it is not possible to decide this case simply on the basis of it being possible to accept Narisa's evidence.
118. I am satisfied that there were discussions between Narisa and Tua in April or May 2008. As explained above the venture was struggling even if it was not failing. I am equally satisfied that as a result of those discussions Narisa and Tua decided to dissolve Media. I am also satisfied that in the course of the discussions Tua stated that Rote's Company [DTVL] would continue to operate the business. I am not, however, satisfied that he ever said that Narisa would become a one third shareholder in the business. He may and on balance of probabilities probably did say that Narisa would become a shareholder in the business. However I am not satisfied that he quantified the extent of the shareholding either at one third or in any other figure. Such a finding is consistent with Narisa's e-mail of 5^th December 2009.
119. Furthermore it has to be remembered that part of DTVL's business comprised the selling of DVDs and CDs. In evidence Narisa very properly accepted that she was not entitled to any share of that part of the business. A one third share of DTVL would necessarily have given Narisa a one third share in that business.
120. Rote denied that he ever agreed with Narisa that she should have a share in DTVL. Narisa does not allege that he did.

5 Amendment

121. It is common ground that the application to amend has been made extremely late. It is equally common ground that the relevant principles are summarised in paragraph 17.3.5 and 17.3.7 (pp 505 and 507) of the 2012 White Book. Mr Silcott specifically drew to my attention the decisions of the Court of Appeal in Swain-Mason v Mills & Reeve [2011] EWCA Civ 14 and Worldwide Corp v GPT [1998] WL 1120704
122. I do not intend to lengthen this judgment with extensive citations from those cases but would venture to derive the following principles from them:

1. There is no doubt that there is a discretionary power to permit an amendment at any stage of the proceedings.

2. The court is and should be less ready to allow late amendments than in former times and a heavy onus lies on a person seeking to make a very late amendment to justify it as regards his own position, the position of other parties to the litigation and that of other litigants in other cases.

3. In every case the court has to balance competing factors. Amongst the most important are the risk of injustice to the person seeking to amend and the prejudice to the other party caused by the late amendments.

123. This is, of course a case where the Defendants were permitted to amend as recently as last month. It is not a case where other litigants will be inconvenienced. It has not given rise to an application for an adjournment. It is a case where the evidence has been very full. In those circumstances Mr Quinn has submitted that it is difficult to see where the Defendants have been prejudiced. The amendments give rise to two different ways in which Narisa's case can be argued based on the evidence established at the trial.
124. Mr Silcott opposed the amendments. He submitted that there was no good reason for the amendments to be so late. He suggested that the amendments were necessary because Narisa's evidence was inconsistent with the pleadings. Her side had not realised that there were no direct discussions with Rote. He suggested that if the question of agency had been pleaded the cross-examination of Narisa might have been different and whether she could have realistically have been relying on Tua in some form of agency agreement.
125. Whilst I see the force of Mr Silcott's points I have decided to permit the amendments. In my view any prejudice to the Defendants is minimal. There may indeed be none. It is outweighed by the risk of injustice if the amendments are not permitted at least to be argued.

6 Agency

126. This is not a case where it is alleged that Rote gave express authority to Tua to enter into a contract on his behalf. The basis of the amendment is:

At all material times, [Rote] permitted it to be represented that Tua had authority to act on his behalf, such that he is bound by the acts of Tua with respect to his dealings with the Claimant.

127. This is thus a case where ostensible authority is alleged. Neither Counsel referred me to any text book or any authority on ostensible authority. I propose therefore to rely on the law as stated in Chitty on Contracts 31^st Edition Vol 2 paragraph 31-057. In that paragraph there are set out 7 rules of which the following are relevant:

1. A representation must be made by words or conduct. The representation must be made by the principal. A representation by the agent as to his authority cannot by itself create apparent authority.

2. The representation must be of fact.

3. The third party must act on the representation.

4. The authority will be that which the agent reasonably appeared to have to the third party taking into account the manifestations of the principal the implied authority normally applicable in the persons or to a person in the agent's position or both.

128. It is immediately apparent that the pleaded case fails on a number of these tests. The allegation that "Rote permitted it to be represented" is insufficient. It does not allege who made the representation. By implication the representation was made by Tua. However as is clear from the passage a representation by the agent cannot of itself create apparent authority.
129. In his submissions Mr Quinn relied on passages in Tua's witness statement. For example in paragraph 7 Tua says he asked Narisa to assist in communication with T2eUK. To my mind this is a mile from Rote representing that Tua had authority to enter into a contract on his behalf for the transfer of part of his shares in DTVL.
130. In my view the claim based on apparent authority is not made out and falls to be dismissed. There was no representation by Rote that Tua was authorised to enter into a contract on his behalf in relation to the ownership of DTVL and or the VDO business.

7 Constructive trust

131. The amendment in relation to trust appears in paragraph 15A of the Amended Particulars of Claim:

In the premises set out above, the Defendants were of trustees such of the Claimant's assets and property as were in their possession or control, specifically her 1/3 beneficial interest in the VDO service howsoever the Defendants chose to operate the same.

132. It is to be noted that the formulation as pleaded does not set out what facts are relied on to constitute the trust. The magical words "In the premises" are to put it no higher "vague". In his oral submission Mr Quinn made the following propositions:

1. There was an arrangement or understanding between the parties that each of them had a one third interest in the VDO streaming business.

2. After April 2008 Rote acted inconsistently with that arrangement in that he has failed to account to the Claimant in respect of her one third share.

3. There is no need on the Claimant to establish that the earlier arrangement or understanding is or was contractually enforceable.

4. The circumstances of this case make it inequitable for the Defendants to retain the profits which have been generated in the manner inconsistent with the arrangement or understanding.

133. He referred me to a passage from paragraph 6-081 of Bowstead which deals with the position of company directors or other fiduciaries who take advantage of corporate opportunities which should have been enjoyed by the principal. In such a case it is essential to establish that there is a fiduciary relationship between the principal and the agent. I am at a loss to see where the fiduciary duty arises in this case. Certainly none is pleaded. It is in my view not encompassed within the magic words "In the premises".
134. Furthermore in the light of my analysis of the events of April and May 2008 in section 4.2 above I am not satisfied that there was the common intention after May 2008 that Narisa would have a one third interest in the VDO business then to be carried on by DTVL. The highest the matter can be put is that Tua said that Narisa would become a shareholder of DTVL. However I am not satisfied that Rote ever agreed that Narisa would become a shareholder. For reasons I have given Tua did not have either express or ostensible authority to bind Rote.
135. In the circumstances the claim based on trust fails.

8 Conclusion

136. Whilst I have accepted Narisa's claim in relation to the setting up of the business she has failed to persuade me that that there was ever an agreement with Rote that after May 2008 she would be entitled to one third of the shares in DTVL or that she would be entitled to a one third interest in the VDO business. I am not satisfied that Tua promised her such a share though I think he did tell her she would be a shareholder. I am not satisfied that Tua had actual or ostensible authority to make that promise on behalf of Rote.
137. It follows that the claim on contract fails and falls to be dismissed.
138. It follows that the claim for rectification of the register also fails.
139. There is no evidence of any partnership between the parties for any period after May 2008.
140. The claim based on trust also fails.
141. The action is accordingly dismissed.

9 Freezing Order

142. On the basis of the findings in this judgment it is now clear there is no basis on which a freezing order against Job and /or ThaiMedia could have been granted. I had heard all the evidence and had by then seen the difficulties faced by Narisa. It was for that reason I said I was concerned about the merits.
143. There were in fact a number of other very formidable reasons why I did not think it appropriate to grant such an order at the time but I do not find it necessary to lengthen this judgment by setting them out.