Edel Marie Magee v John Wade Crocker
| Jurisdiction | England & Wales |
| Judge | Cawson |
| Judgment Date | 05 July 2024 |
| Neutral Citation | [2024] EWHC 1723 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2021-MAN-000070 |
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[2024] EWHC 1723 (Ch)
HHJ Cawson KC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: BL-2021-MAN-000070
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
BUSINESS LIST (ChD)
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester M60 9DJ
Giles Maynard-Connor KC and Amie Boothman (instructed by JMW Solicitors LLP) for the Claimants and Fourth Party
Mohammed Zaman KC and Alexander Heylin (instructed by Penningtons Manches Cooper LLP) for the First Defendant
Hearing dates: 23–26, 29–30 April, and 1–3, 7–10 May 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives
HHJ Cawson KC:
CONTENTS
| INTRODUCTION | 1 |
| KEY INDIVIDUALS AND ENTITIES AND DEFINITIONS | 6 |
| BACKGROUND | 7 |
| THE PARTIES' RESPECTIVE CASES | 176 |
| Introduction | 176 |
| The Fitzpatrick Parties' case | 180 |
| Mr Crocker's case | 200 |
| WITNESSES AND EVIDENCE | 209 |
| Introduction | 209 |
| Approach to the evidence | 211 |
| The Fitzpatrick Parties' witnesses | 220 |
| Mr Crocker's witnesses | 235 |
| Missing documents | 254 |
| DETERMINATION OF THE KEY FACTUAL DISPUTES | 259 |
| The Nisma Settlement and Mr Murray's involvement therein | 259 |
| What was said by Mr Fitzpatrick to Mr Crocker about Mr Murray? | 266 |
| Discussions prior to the 2014 Transfer | 274 |
| Did Mr Fitzpatrick fraudulently misrepresent the position? | 277 |
| Assignment of the £364,641 loan owed by the Company to Camelot | 285 |
| DETERMINATION OF THE CLAIM COUNTERCLAIM & PART 20 CLAIMS | 287 |
| Introduction | 287 |
| Are the 2014 Transfer and the registration of shares open to challenge? | 290 |
| Are the terms of the 2010 SHA still binding? | 298 |
| OVERALL CONCLUSION | 325 |
| SCHEDULE A | |
| SCHEDULE B |
INTRODUCTION
The present proceedings were commenced on 29 June 2021 by the Claimants (“ the Fitzpatrick Trustees”), the trustees of the Fitzpatrick Family Discretionary Settlement (“ the FFDS”) and the daughters of the settlor of the FFDS, the Fourth Party, Matthew John (“ Sean”) Fitzpatrick (“ Mr Fitzpatrick”). By the proceedings, the Fitzpatrick Trustees seek declarations and consequential relief concerning the validity of a transfer in 2014 of shares in the Second Defendant, Pedham Place Golf Centre Limited (“ the Company”) to the FFDS by the Third Party, Camelot Trust Corporation Limited (“ Camelot”), as trustee of the Nisma Settlement (“ the 2014 Transfer”), and as to the entitlement of the Fitzpatrick Trustees to rely upon the terms of a Shareholders' Agreement dated 24 May 2010 made between the First Defendant, John Wade Crocker (“ Mr Crocker”) (1) and Camelot (2) (“ the 2010 SHA”).
By his Defence, Counterclaim and Part 20 Claim, Mr Crocker denies that the Fitzpatrick Trustees are entitled to the declarations that they seek. Mr Crocker seeks his own declaratory relief to the effect that: the 2010 SHA was terminated in consequence of the 2014 Transfer; the 2014 Transfer was in breach of the Articles of Association of the Company introduced at the same time as the 2010 SHA (“ the 2010 Articles”); and that the 2014 Transfer, i.e. any consent of Mr Crocker to it, was procured by the fraudulent misrepresentations made by Mr Fitzpatrick, as well as being in breach of the 2010 SHA and the 2010 Articles.
I agree with the analysis suggested on behalf of Mr Crocker that whilst the present proceedings raise a significant number of issues, the case can be crystallised into two overarching questions or issues:
i) Was there a fraud upon Mr Crocker by Mr Fitzpatrick depriving Mr Crocker of his pre-emption rights under the 2010 Articles at the time of the transfer of shares from the Nisma Settlement to the FFDS purported to have been effected by the 2014 Transfer by Mr Fitzpatrick fraudulently misrepresenting that he was the settlor of the Nisma Settlement and/or that this was his offshore family trust?
ii) Whether the 2010 SHA was and is binding between (1) the Fitzpatrick Trustees and (2) Mr Crocker, even though:
a) The 2010 SHA provides for termination upon share transfer;
b) The Fitzpatrick Trustees are not parties to the 2010 SHA?
Giles Maynard-Connor KC and Amie Boothman appear on behalf of the Fitzpatrick Trustees and Mr Fitzpatrick. Mohammed Zaman KC and Alex Heylin appear on behalf of Mr Crocker. I am grateful to them for their written and oral submissions and assistance during the course of the trial.
Neither the Company nor Camelot has played any active in the proceedings. This follows from the fact that the real dispute is as between the Fitzpatrick Trustees and Mr Fitzpatrick (“ the Fitzpatrick Parties”) on the one hand, and Mr Crocker on the other hand.
KEY INDIVIDUALS AND ENTITIES AND DEFINITIONS
The key individuals and entities involved in the present dispute are as follows:
BACKGROUND
| NAME | DESCRIPTION |
| Parties | |
| The Claimants | |
| Edel Marie Magee, Siobhan Mary Ferguson, Ciara Melanie Pryce and Donna Marian Powell (“ the Fitzpatrick Trustees”) | The Claimants, and the trustees and beneficiaries, of the Fitzpatrick Family Discretionary Settlement (“ the FFDS”), having previously been identified as beneficiaries of the Nisma Settlement. Daughters of Mr Fitzpatrick and his wife, Olivia (nee Murray), who is also a beneficiary of the FFDS (and previously identified as beneficiary of the Nisma Settlement). Donna Powell (“ Mrs Powell”) was appointed a director of the Company on 23 January 2015 (having been an observer on the board with Mrs Boyes as from June 2012), and she was registered as a member thereof (on behalf of herself and the other Fitzpatrick Trustees) on 3 April 2020. . |
| The Defendants | |
| The First Defendant — John Wade Crocker ( “Mr Crocker”) | Mr Crocker is the freeholder of Pedham Place Farm, Farningham, Dartford, Kent, DA4 0JW (“ Pedham Place Farm”). Mr Crocker is a director of the Company, having been appointed on 15 February 1994. He was majority shareholder until 2010 when he became a 50% shareholder together with Camelot. He was also the Company Secretary of the Company from 17 January 1995 to 21 December 2001. |
| The Second Defendant — Pedham Place Golf Centre Limited (‘the Company’) | A Company incorporated on 31 January 1994 (formerly named Orientor Limited) and acquired “off the shelf” for the purposes of operating the golf course at Pedham Place Farm. |
| Third Party | |
| Camelot Trust Corporation Limited (“Camelot”) | A company incorporated in the Republic of Liberia and dissolved by the Liberia Corporate Registry on 1 September 2019. Trustee of the Nisma Settlement having replaced Cameo Trust Corporation (“ Cameo”) as such on 11 August 1997. |
| Fourth Party | |
| Matthew John (“Sean”) Fitzpatrick ( “Mr Fitzpatrick”) | A businessman involved, through the VGC group of companies (including historically VG Clements Contractors Limited and VGC), in construction and civil engineering. A director of the Company, having been appointed on 19 December 1994. It is his case that he was the UK representative, and then administrator/controller of, the Nisma Settlement. He is the settlor of the Fitzpatrick Trust, married to Olivia Fitzpatrick and the father of the Fitzpatrick Trustees. |
| Witnesses (other than parties) | |
| Raymond Willim Preedy (“ Mr Preedy”) | An accountant with RE Jones & Co (long since retired). Witness for the Fitzpatrick Parties. |
| John Frederick Fortune (“ Mr Fortune”) | A director (and former shareholder) of the Company, first appointed as a director on 20 July 1994. He is also the Company Secretary (appointed 21 December 2001). Mr Fortune was a golf architect initially engaged to advise and assist on planning applications for a golf course at Pedham Place Farm. He was a minority shareholder in the Company until 19 February 2010 when he transferred his shares to Camelot. Witness for Mr Crocker. |
| Emma Rachel Boyes (“ Mrs Boyes”) | A daughter of Mr Crocker and a director of the Company, appointed on 23 March 2015, having been an observer on the board together with Mrs Powell from June 2012. Witness for Mr Crocker. |
| Others | |
| Abbots Chartered Certified Accountants (“ Abbots”) | An accountancy firm that acted for Mr Fitzpatrick and Cameo / Camelot. |
| Chris Ashby | Owner of Capricorn Farm, neighbouring Pedham Place Farm. On Mr Crocker's case he was the introducer of Mr Crocker to Mr Fitzpatrick and Mr Keaney. |
| BBM Management Services Limited (“ BBM”) | An Isle of Man based services company. |
| Chris Bateson (“ Mr Bateson”) | A director of BBM, Cameo, Camelot and Everford Consultants Limited (“ Everford”). |
| Ian Bertram (“ Mr Bertram”) | Settlor of the Nisma Settlement under a Deed of Settlement dated 16 November 1992 (“ the 1992 Nisma Deed”) that established, and appointed Cameo as trustee of the Nisma Settlement. |
| Jonathan Van Der Borgh | An accountant. Director and Company Secretary of the Company from 15.02.94 to 17.01.95. |
| Nicholas Van Der Borgh | Brother to Jonathan Van Der Borgh, and a solicitor at Courtenay Van Der Borgh Shah, Solicitors. |
| Matthew (“Matt”) Boyes (“ Mr Boyes”) | Husband of Mrs Boyes who has provided advice to Mr Crocker. Director (non-voting) of the Company between 19 March 2020 and 17 September 2020. |
| Alan Bracher (“ Mr Bracher”) | A solicitor and partner in Bracher Rawlins LLP. |
| Bracher Rawlins LLP (“ Bracher Rawlins”) | A solicitors' firm engaged in relation to... |
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