(1) Dudley Joiner (2) Thelma Joiner v (1) Richard George (2) Gary Robinson (3) Arnhem Technology Ltd (4) The International Technology Group Ltd (5) UNigel Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Christopher Slade,Lord Justice Aldous,Lord Justice Keene |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2002] EWCA Civ 160 |
| Docket Number | Case No: A3/2000/3294 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2002 |
[2002] EWCA Civ 160
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE PARK
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Aldous
Lord Justice Keene and
Sir Christopher Slade
Case No: A3/2000/3294
Mr D. Joiner appeared in person
Peter Cranfield and Ian Wilson (instructed by DMH for the First and Second Respondents)
INTRODUCTION
On 31 st January 2000 Park J delivered a judgment in which he held that the respondents to this appeal, Mr George and Mr Robinson, were in breach of contract by not causing a 51% shareholding in a company named Unigel Limited, but commonly known as "Unigel UK", to be transferred to the appellant claimants, Mr and Mrs Joiner, when the appellants exercised an option to purchase that shareholding on 23 rd November 1994 ("the valuation date"). He declined to hold that they were entitled to specific performance, but held that they were entitled to damages.
The wording of the relevant part of the Order was:
"The first and second defendants do pay to the claimants damages equal to the value, expressed in money, which a 51% shareholding in the English company Unigel Limited would have had to the claimants on 23 November 1994, such value to be ascertained by an inquiry in accordance with the directions set out in Annex A hereto, together with interest at 8% per annum from 23 November 1994 until the date on which the value is determined by the court."
The inquiry directed by the Judge took place before him over six days spread between May and June 2000. As before, Mr Joiner represented himself and his wife, and Mr George represented himself and Mr Robinson. Mr Joiner and Mr George also gave evidence, and each called evidence from an expert witness: Mr Fisher of Bruce Sutherland & Partners on behalf of Mr and Mrs Joiner, and Mr Faull of Hilton Sharpe & Clarke on behalf of Mr George and Mr Robinson.
By his second judgment delivered on 28 th July 2000, the Judge decided that the damages payable by the respondents to the appellants are £129,000, such damages to carry interest from 23 rd November 1994 to 28 th July 2000 at 8% per annum. He gave the appellants permission to appeal limited to the determination of the amount of damages.
The respondents sought permission to appeal out of time on liability and the amount of damages. On 29 th March 2001 Lord Justice Aldous granted them permission to appeal solely on the issue of the amount of damages. At a time when the respondents were still acting in person, Mr George settled grounds of cross-appeal. But counsel recently instructed on their behalf, Mr Peter Cranfield, has informed us that, having considered the cross-appeal with their legal advisers, the respondents have decided not to pursue it. Their case is that there was sufficient evidence to justify the Judge's findings on each of the matters as to which the appellants make complaint. Correspondingly, though they disagree with his findings referred to in grounds 1 to 3 of their grounds of appeal, they now accept that they were within the legitimate range of the exercise of his judicial discretion.
As in the Court below, Mr Joiner has appeared in person, representing himself and his wife. He has presented their case with clarity and courtesy. Mr Cranfield, counsel for the respondents has also greatly assisted us with an excellent skeleton argument and his oral submissions.
THE FACTS
The background facts which are material for present purposes can be summarised relatively shortly. I extract them principally from the Judge's two full and comprehensive judgments.
Mr Joiner is a specialist in the technology of thixotropic gels. A thixotrope is a substance which forms a stable gel structure when it is at rest, but which becomes fluid when it is stirred or subjected to some other kind of force. A particular application of such gels is their use in connection with fibre-optic cables, and this has been Mr Joiner's field for about the last twenty years. He claims that he was originally involved in the invention of the concept. From the early 1980's he has been concerned as an entrepreneur in a number of business ventures to exploit it, supported throughout by his wife, the second appellant.
In the mid to late 1980's, he and a few other persons owned and ran a company called Synthetic Technology Limited ("Syntec"). Its product was known as "rheogel". In 1989 it was placed in administration under Part II of the Insolvency Act 1986. The distributor of its rheogel was Astor Chemicals Limited ("Astor"), a large and financially strong company.
In December 1989 the administrators of Syntec sold the business of Syntec to Astor. Syntec was subsequently dissolved. In view of certain alleged aspects of Mr Joiner's conduct while concerned with its management, the High Court, on 13 th April 1993, imposed on Mr Joiner a seven years disqualification from being a director pursuant to the Company Directors Disqualification Act 1986.
After they had been deprived of Syntec's rheogel business, Mr and Mrs Joiner, in early 1990, acquired a new company, Gel Technology Limited ("Geltec") to establish a new gel business. They owned this company in equal proportions. It called its product "unigel". Like Syntec's rheogel, the business of which had been bought by Astor, unigel is a thixotropic gel designed for use in connection with fibre-optic cables.
There was at least some degree of similarity between the two gels, rheogel and unigel. In February 1991 Astor began proceedings against Geltec, Mr Joiner and another director, Mr Bury, alleging that Geltec's unigel business involved infringements of intellectual property rights which Astor owned in consequence of its purchase of Syntec's business in 1989. Though Astor seems to have failed in an application for interlocutory relief, its action remained in existence and had some influence on the events which followed.
The respondents, Mr George and Mr Robinson, have at all material times been close business colleagues. In the late 1980's, Mr Robinson was resident in Hong Kong, where he had established a company known as Arnhem Technology Limited ("Arnhem") in 1987 or 1988. By the time that is relevant for this case, Arnhem was owned by himself and Mr George. They saw great opportunities for the optical fibre industry in Asian markets, particularly China, Taiwan and India. They wanted to develop Arnhem's business so as to represent non-local manufacturers of various products used in the industry, such as thixotropic gels.
The respondents first met Mr Joiner during the later part of the Syntec period. After Syntec had gone into administration and its business had been sold to Astor and Mr Joiner's new company, Geltec, started producing unigel, Arnhem became the Far East distributor for Geltec. In general it did not act as an agent remunerated by commissions. The usual pattern was that it bought quantities of unigel from Geltec and resold it to customers in China. Arnhem and its network of customers in China were one of the major sale outlets enjoyed by Geltec.
The respondents regarded unigel as an excellent product for exploitation within the fibre-optic cable market in China. In 1991 and 1992, there were a number of discussions between them and Mr Joiner about creating some more institutionalised relationship between them than the regular trading connection which had developed between Geltec and Arnhem. Meantime, however, the financial position of Geltec was deteriorating. A winding up petition was served on Geltec by a trade creditor in late 1991. Geltec was finally put into liquidation by an order of the Court on 29 th July 1992.
The more formal business connection between the appellants and the respondents began when, on 16 th September 1992, they signed a document entitled "Heads of Agreement". It was for the most part drafted by Mr Joiner. The introductory paragraphs referred to Geltec and to Arnhem and recorded that the respondents were establishing a holding company named International Technology Group Limited ("ITG") registered in Hong Kong. They stated that the parties had agreed "to cooperate together to form a new UK registered company in order to acquire such assets of [Geltec] as are necessary to continue the manufacture and distribution of cable filling gels under the name Unigel". The stated terms of the Agreement included the following. The parties were to procure a shelf company which would have its name changed to "Unigel Ltd". The appellants would initially subscribe for 51 shares of £1 each in this company, which came to be commonly referred to as "Unigel UK". The opening directors would be the two respondents "on behalf of ITG". Mr Joiner would be offered a position on the board "when his personal position with regard to past litigation with Astor Chemicals Ltd is clarified". [The Judge found that the respondents were not at this time aware of Mr Joiner's disqualification as a director]. Unigel UK would negotiate a loan of £45,000 from National Westminster Bank. The respondents would "negotiate the purchase from the receivers of all of [Geltec's] manufacturing and laboratory equipment, all intellectual property rights including the UNIGEL trade name and all goodwill attached to [Geltec's] business as per the attached Schedule 1". Conditionally on the loan from the Bank being obtained, Unigel UK would purchase the...
To continue reading
Request your trial
-
Ageas (UK) Ltd v Kwik-Fit (GB) Ltd and Another
...for the purpose of checking what was a proper estimate at that date" (p742b). A point of this kind was advanced in Joiner v George [2002] EWCA Civ 160. The claimants were entitled to damages for the defendants' failure to transfer 51% of a company pursuant to an option to purchase which had......
-
The Hut Group Ltd v Oliver Nobahar-Cookson and Another
...[2014] EWHC 2178 (QB) where Popplewell J reviews the authorities, and as to the general exclusion of hindsight see Joiner v George [2002] EWCA Civ 160 at [74], Sir Christopher Slade. 185 For the avoidance of doubt, it is not suggested that the mere fact that shares sold in breach of warrant......
-
Donegal Investment Group Plc v Danbywiske
...which occurred after that date: see Re Holt [1953] 2 All E.R. 1499, [1953] 1 WLR 1488, [1953] 2 Lloyds Rep 506 and Joiner v. George [2002] EWCA Civ 160, [2003] BCC 298 at 68.’ 13 Counsel for Mr. Crabtree relied upon the statement of Staughton J. in Buckingham v. Francis [1986] 2 All E.R.......
-
Equitix Eeef Biomass 2 Ltd v Michael Fox
...of warranties of quality generally precludes any adjustment on account of later events; see the cases cited above and Joiner v. George [2003] BCC 298, [2002] EWCA Civ 160, per Sir Christopher Slade at [74]: the principle that “hindsight ought to be excluded” was “a statement of the general ......