(1) Terry John Neil v Soraya Jasmine Henderson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Zacaroli |
| Judgment Date | 23 January 2018 |
| Neutral Citation | [2018] EWHC 90 (Ch) |
| Docket Number | Case No: HC-2016-003126 |
| Court | Chancery Division |
| Date | 23 January 2018 |
[2018] EWHC 90 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Zacaroli
Case No: HC-2016-003126
Mr Romie Tager QC, Ms Camilla Chorfi (instructed by Hughmans Solicitors LLP) for the Claimants
Mr Orlando Fraser QC, Mr Donald Lilly (instructed by Bark & Co Solicitors) for the Defendant
Hearing dates: 20 November – 29 November 2017
Judgment Approved
Introduction
This is an application by Terry John Neil (“Mr Neil”) and Anthony Wright Hall to commit to prison Soraya Jasmine Henderson (“Ms Henderson” or the “Defendant”) for alleged contempt of court. It is brought on two procedural footings. First, by way of a Part 23 application dated 8 December 2016 under CPR 81.18(1)(a), relating to an allegedly false witness statement served in the course of proceedings which have since been discontinued. Those proceedings (the “injunction proceedings”) were commenced by a company called Manage Security Services Limited (“MSS”), for an injunction to remove Ms Henderson and two other individuals, Malcolm Barter and Anthony Clarke, from its premises, and to prevent them holding themselves out as representing MSS. MSS also sought a declaration that the only validly appointed directors of MSS were Mr Neil and Mr Hall. Second, by way of a Part 8 claim under CPR 81.14(1)(a) relating to alleged interference with the due administration of justice by deploying forged documents before the court in the injunction proceedings. The parties are agreed that this judgment will deal solely with the question whether any of the alleged contempts have been committed, leaving for a further hearing questions as to the appropriate sanction, if any.
The alleged contempt of court relates to (1) three documents dated 31 October 2016, but said by Ms Henderson to have been executed on or about 26 or 27 September 2016 (the “September documents”), purportedly signed by a Ms Eva Borkova; (2) a purported witness statement of Ms Borkova dated 4 November 2016 (the “disputed Borkova statement”); and (3) a witness statement of Ms Henderson dated 4 November 2016, exhibiting the September documents.
The September documents comprise (1) a document purporting to be a record of a decision by Ms Borkova (the “Purported Record of Decision”) as the sole owner of an entity called Cornhill Services ES to remove Mr Neil from office as a director of MSS, and to replace him with Ms Henderson and Mr Clarke; (2) a letter purportedly from Cornhill Nominees ES to MSS giving notice of the removal of Mr Neil as a director of MSS; and (3) a letter purportedly from Cornhill Nominees ES to MSS giving notice requiring the immediate appointment of Ms Henderson and Mr Clarke as directors of MSS.
The disputed Borkova statement purports to contain evidence from Ms Borkova confirming that she, trading as Cornhill Services ES, was the owner of one-third of the shares in MSS, that as such she had the power to appoint two directors to the board of MSS, and that she signed the September documents removing Mr Neil and appointing Ms Henderson and Mr Clarke as directors of MSS on 31 October 2016.
The Claimants contend that Ms Henderson forged Ms Borkova's signature on the September documents and on the disputed Borkova statement, that the witness statement of Ms Henderson of 4 November 2016 was a false statement because it exhibited the September documents as if they were genuine documents, and that Ms Henderson served the disputed Borkova statement and her own statement exhibiting the September documents on the Claimants in the injunction proceedings, and deployed them at court hearings on 1 November 2016 and 8 November 2016. It is contended that the deployment of the September documents and the disputed Borkova statement amounted to an interference with the due administration of justice, and that Ms Henderson intended such interference. It is contended that she made her witness statement dated 4 November 2016 without an honest belief in its truth knowing that it was likely to interfere with the due administration of justice.
The Amended Grounds in support of the Part 8 committal application contain six separate grounds. The Part 23 claim contains a single ground. I set out all seven grounds in full later in this judgment.
Ms Henderson denies all aspects of the claim against her.
Background
The incorporation of MSS
Mr Neil and Ms Henderson met in the early 1990s. They were married in March 2007. They have one (now adult) daughter together, and three other adult children from their respective previous relationships.
MSS provides door staff to nightclubs and other premises in the West End of London. It was set up in 2002 by Mr Neil and Ms Henderson, together with Mr Barter, Mr Hall (the Second Claimant) and Mr Hall's son, Michael, in order to amalgamate various business interests connected to the security industry. The initial shareholders of MSS were Finecourt Securities Limited, Cornhill Nominees Limited and Compass Securities Limited. Pursuant to a shareholders agreement dated 1 April 2002, Cornhill Nominees Limited was initially allotted 24% of the shares in MSS, but was entitled to subscribe for further shares, to take its holding to 33.3%, on the satisfaction of certain performance targets. At a joint board and shareholders meeting on 19 April 2002, however, the shareholders agreement was varied so that each of the shareholders held 33.3% of the shares.
Cornhill Nominees Limited was the vehicle through which Mr Neil and Ms Henderson's interests were to be held. There is a dispute, however, as to the beneficial ownership of the shares held by Cornhill Nominees Limited, following the setting up of MSS.
Mr Neil contends that the shares held by Cornhill Nominees Limited were at all times owned beneficially by him and Ms Henderson jointly.
Ms Henderson contends, on the other hand, that the shares were, from inception, held for the benefit of Ms Borkova. This came about, she says, in the following circumstances. When she and Mr Neil were setting up MSS they were committing everything they had to the business and shared a concern that if it all went wrong they would be destitute with no gainful employment, four children and a mortgage. On that basis they sought a sponsor, being someone who would commit to support them for a six month period if it all went wrong. Ms Henderson says that Mr Neil first approached a friend of his and offered him ownership of their shares in MSS in return for a commitment of financial support, but he declined. She therefore approached Ms Borkova. She says that she had met Ms Borkova in London in around 2000 and that they were close friends. According to her, Ms Borkova was then a businesswoman in her own right, running a property management business in Spain. She offered her and Mr Neil's shares in MSS to Ms Borkova in return for Ms Borkova committing to supporting Mr Neil and Ms Henderson, in the event the business failed, by paying them £4,000 per month for six months to enable them to cover their outgoings. She says that she explained to Ms Borkova that as owner of the shares she would be entitled to all dividends, which she then estimated to be between £50,000-£70,000 per year.
Ms Borkova denies that any such arrangement was made, and denies having met Ms Henderson or Mr Neil at all until about 2005, when she babysat for their daughter at their property in Las Tortugas, Marbella and subsequently began to look after that property for them.
Pursuant to the shareholders' agreement, each of the shareholders of MSS was (subject to them continuing to hold at least 30% of the shares) entitled to appoint two directors of the company. From inception of the business, Mr Neil and Ms Henderson were the directors appointed by Cornhill Nominees Limited.
By clause 7.1 of the shareholders' agreement, certain matters could not be undertaken without the unanimous support of all shareholders who held in excess of 30% of the share capital, including the removal and appointment of directors.
The introduction of Cornhill Services ES
On 6 March 2008, Mr Richard Lance, of Cornhill Secretaries Limited, wrote to MSS, advising that its nominee company, Cornhill Nominees Limited, was the holder of 333 shares in MSS, and that they understood these shares were held as nominee for Ms Henderson. He asked whether MSS wished for them to continue to hold the shares, or wished to arrange their transfer. He indicated there was a £500 per year charge to continue holding the shares as nominee. On 20 April 2008 a stock transfer form was executed by Cornhill Nominees Limited, transferring its shares in MSS to Cornhill Services ES, the address for which was given as 321 Las Tortugas, Marbella, being Mr Neil's and Ms Henderson's holiday apartment in Spain
It is common ground that the transfer to Cornhill Services ES took place notwithstanding that this appears to have constituted a breach of clause 10 of the shareholders agreement, pursuant to which no shareholder could dispose of its interest in its shares without the prior written consent of the other shareholders, or otherwise than in accordance with the transfer provisions in the articles of association.
Cornhill Services ES is not a legal entity. There is a dispute as to precisely what it is. Mr Neil contends that it is a name used to denote him and Ms Henderson, in other words that he and Ms Henderson have been, since April 2008, the joint legal and beneficial owners of 33.3% of the shares in MSS.
Ms Henderson contends that it is a trading name of Ms Borkova. She says that she was told by Mr Hall, the company secretary of MSS, that Cornhill Nominees Limited no longer wished to hold the...
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