Greenwich Millennium Exhibition Ltd v New Millennium Experience Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lawrence Collins |
| Judgment Date | 23 July 2003 |
| Neutral Citation | [2003] EWHC 1823 (Ch) |
| Docket Number | 7128/7129/7131/7132 of 2002 7129/7132 of 2003 |
| Court | Chancery Division |
| Date | 23 July 2003 |
[2003] EWHC 1823 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
COMPANIES COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lawrence Collins
7128/7129/7131/7132 of 2002
7128/7131 Of 2002
7129/7132 of 2003
In The Matter of
The New Millennium Experience Company Limited
Mr David Oliver QC and Mr David Hyde (instructed by Barker Gillette) for Greenwich Millennium Exhibition Ltd.
Mr Malcolm Davis-White QC (instructed by The Treasury Solicitor) for Lord Falconer of Thoroton QC, The Rt Hon Peter Mandelson MP and the Secretary of State for Culture, Media and Sport.
Mr Paul Greenwood and Mr Colin Passmore (instructed by Simmons & Simmons) for the Joint Liquidators.
I Introduction
The New Millennium Experience Company Ltd ("NMEC") is a company in public ownership which operated the Millennium Dome in Greenwich. In December 2001 it was put into members' voluntary liquidation by a resolution of its sole shareholder, Lord Falconer of Thoroton. Greenwich Millennium Exhibition Ltd ("GMEL") is a company which put on a millennium exhibition at the Royal Naval College, Greenwich in 1999, and was involved in trade mark disputes with NMEC. It now claims to have enormous claims (which have varied between £35 million and £1.6 billion) against NMEC on the ground that HM Government and NMEC conspired to ruin GMEL's business.
In the course of dealing with GMEL's claims the liquidators of NMEC discovered that by an administrative oversight Lord Falconer had not been entered in the register of members of NMEC. In consequence Lord Falconer (and other former shareholders) obtained an order from Lightman J in April 2002 rectifying the register with retroactive effect.
GMEL claims that the order of Lightman J should not have been made and that the statement of assets and liabilities made by the directors at the time of the voluntary liquidation contained material omissions. In these applications the principal issues are whether the order of Lightman J should be set aside, with the consequence that NMEC would not be in liquidation at all, and (if it is not set aside) whether (as GMEL contends) the statement of assets and liabilities is a nullity by virtue of its non-compliance with section 89 of the Insolvency Act 1986, with the effect that, under section 90, the winding up is not a members' voluntary winding up, but a creditors' voluntary winding up. These applications involve a number of questions of company law, including standing to set aside an order for rectification of the register of members and the effect of alleged omissions in a statement of assets and liabilities.
II NMEC
NMEC was incorporated on 16 October 1995 under the name Judgeblow Limited. It was acquired by a company called The Imagination Group Limited ("Imagination") in November 1995, when its two issued shares were transferred and registered in Imagination's name. On 23 November 1995 it changed its name to Millennium Central Limited.
Imagination was one of the bidders to deliver and operate the proposed Millennium Exhibition to be held at Greenwich.
On 11 December 1996 a share option agreement was entered into between Imagination, the Secretary of State for National Heritage and the Millennium Commission ("the Commission"). Under this agreement an option was granted to the Secretary of State (or a nominee of the Secretary of State or the Commission) to acquire the two issued, fully paid shares in NMEC.
In January 1997 the then Government announced the basis upon which the Millennium project would go ahead. The share option was exercised on 6 February 1997, which had the ultimate effect of bringing NMEC into public ownership. It was both a company incorporated under the Companies Act 1985, and a non-departmental public body, which had the effect of giving rise to various requirements regarding, in particular, financial monitoring and control. It was funded by lottery grant from the Commission, the use of which was governed by the terms and conditions set out in a grant memorandum.
The Commission nominated Millennium Central Holdings Limited ("Holdings") as the transferee of the shares. Holdings undertook with the Commission that the shares would be transferred by it to the Chancellor of the Duchy of Lancaster, the Rt Hon Roger Freeman MP. Imagination executed a transfer of the two issued shares to Holdings.
The day after the registration of the transfer of the shares to Holdings, a further share transfer from Holdings to Mr Freeman was executed.
On 14 February 1997 by written resolution of its sole shareholder, new articles of association for NMEC were adopted. The articles required the registered member to be a Minister of the Crown and put a mechanism in place to ensure that this remained the position.
Once in public ownership, NMEC was charged with implementing the Government's and the Commission's objective that the nation should celebrate together the year 2000 and the arrival of the new millennium. The focus was to be the Millennium Experience Project, comprising the Dome at Greenwich and a linked national programme of country wide-events and activities.
In May 1997, following the general election, a share transfer was executed transferring the entirety of the issued share capital of NMEC from Mr Freeman to the Secretary of State for National Heritage (the Rt Hon Chris Smith MP).
Following a review by the new Government, on 19 June 1997 the Prime Minister announced that the Millennium project would go ahead.
A transfer of the shares to the Minister Without Portfolio, the Rt Hon Peter Mandelson MP, from the Secretary of State for National Heritage was executed on 25 June 1997.
On 2 July 1997, following a resolution passed on 30 June 1997, NMEC's name became its current name. From that date the exhibition project became known as the Millennium Experience.
Following his resignation from the Government, and as required by NMEC's articles of association, on 23 December 1998 a share transfer of all the shares in NMEC in favour of the Secretary of State for Culture, Media and Sport (as a corporation sole) was executed by Mr Mandelson.
On 5 January 1999 a share transfer of the shares in NMEC in favour of Lord Falconer of Thoroton, Minister of State, Cabinet Office, was executed by the Secretary of State.
On 18 December 2001 Lord Falconer, as sole shareholder, passed a resolution placing NMEC into members' voluntary winding up. The directors made the required statutory declaration of solvency. Mr Richard Heis and Mr Stephen Treharne of KPMG were appointed as liquidators ("the Liquidators")
III GMEL
Mr Christopher Moore was the founder of GMEL. He had been a lecturer in mathematics, and during the 1980s was a partner in a City firm where he developed financial research and investment software. He had a long-standing interest in art, and had organised exhibitions in galleries. In 1995 he formed the idea of organising an exhibition in Greenwich to celebrate the Millennium.
In 1996 GMEL (and Greenwich Millennium Festival Ltd) were incorporated and lodged various "Millennium" trademark applications. GMEL put on a millennium exhibition at the Royal Naval College Greenwich in 1999, and entered into merchandising agreements and/or corporate hospitality and other commercial arrangements with a number of organisations, including LBC, PriceWaterhouseCoopers and Telecom UK. The exhibition was opened by HRH Prince Michael in April 1999.
The uncontested evidence of the Liquidators is that GMEL has two directors, one of whom, Mr Moore, has been (according to his own evidence) suffering from to mental illness, and the other, Quintus Management Ltd, is a corporate director based in Jersey and has not taken any part in the proceedings. Its shareholder is an entity called FX24 Inc which is said to be based in Jersey, but investigations by the Liquidators have not revealed the existence of any such entity in Jersey, and their evidence is that it has an address on the Polynesian island of Niue, which appears to be the office of Panamanian lawyers.
GMEL's accounts show that during the year ended 30 June 2000 (the most recent accounts filed at Companies House) it traded at a loss of £459,000 and its liabilities would exceed its assets by approximately £528,000 were it not for the fact that Mr Moore had valued its trademarks in the balance sheet at £15 million. That valuation is based on an assumption that GMEL's claims against NMEC and the Liquidators are successful.
IV GMEL's claims
NMEC and GMEL were involved in a number of trade mark registration disputes. NMEC made applications in November 1997 and April 1998. GMEL made applications in May and July 1999. Each company opposed the other's applications. In October/November 2001 NMEC withdrew its applications and its opposition to GMEL's applications. By then the point had become academic to NMEC. The disputes were thus disposed of. Costs orders were made in favour of GMEL. The total costs ordered amounted to £3,520.
The nature of GMEL's claim against NMEC, which was made first in 1999, is set out in letters of December 13, 2001 from its then solicitors, Messrs Finers Stephens Innocent, to Messrs Simmons & Simmons (NMEC's solicitors) and of December 18, 2001 from GMEL to the Chairman and the Board of...
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