Mr Henry Albert Cole v Premiere Care Holdings Ltd

JurisdictionEngland & Wales
JudgeMr Hugh Sims
Judgment Date10 June 2021
Neutral Citation[2021] EWHC 1595 (Ch)
Docket NumberCase No: CR-2020-004060
Date10 June 2021
CourtChancery Division

[2021] EWHC 1595 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

INSOLVENCY AND COMPANIES LIST (ChD)

IN THE MATTER OF PREMIERE CARE HOLDINGS LIMITED (No. 00723564)

AND IN THE MATTER OF PREMIERE CARE (SOUTHERN) LIMITED (No. 03073816)

AND IN THE MATTER OF PENERLEY LODGE LIMITED (No. 11870873)

AND IN THE MATTER OF THE COMPANIES ACT 2006

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Hugh Sims QC

(Sitting as a Deputy Judge in the High Court)

Case No: CR-2020-004060

Between:
Mr Henry Albert Cole
Petitioner/Applicant
and
(1) Premiere Care Holdings Limited
(2) Premiere Care (Southern) Limited
(3) Penerley Lodge Limited
(4) Mr Shawn Michael Cole
(5) Mrs Cara Cole
Respondents

Mr Paul Strelitz (instructed by Direct Access) for the Petitioner/Applicant

Mr Peter Susman QC (instructed by Direct Access) for the Fourth and Fifth Respondents and also as asserted representative for the First to Third Respondents

Hearing dates: 8 June 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Hugh Sims QC:

Introduction

1

By the application of the Petitioner, Mr Henry Albert Cole (“Henry Cole”), dated 1 April and issued on 8 April 2021 (“the Application”), interim relief is sought in his favour against the Respondents pending the final hearing of his petition (“the Petition”) for relief under s. 996 of the Companies Act 2006 (“CA”) arising from unfairly prejudicial acts which he complains of in his capacity as a shareholder, under s. 994 CA 2006. There are two main categories of interim injunctive relief sought by Henry Cole, namely orders:

a. that Mr Shawn Michael Cole (“Shawn Cole”), Henry Cole's son, and Mrs Cara Cole (“Cara Cole”), Shawn Cole's wife, be removed as directors of the First to Third Respondent companies (referred to collectively below as “the Companies”), in order that Henry Cole may have sole control of the Companies (this may be said to be relief targeted at removing or controlling the activities of Shawn and Cara Cole and I shall call it “Category 1 relief”); and

b. requiring access to the Companies' information and records to enable Henry Cole to effectively discharge his responsibilities as a director of the Companies without being impeded in doing so by Shawn and Cara Cole (I shall call this “Category 2 relief”, as it is focussed on what Henry Cole can do as director).

2

Both categories of relief sought may be said to form part of a wider jurisdiction which the court has, on a s. 994 petition, to regulate the conduct of the affairs of a company, under s. 996(2). Such orders may be made on an interim basis, if the court is satisfied it would be just and convenient to do so. An adapted form of American Cyanamid principles apply, since damages is not the remedy sought by a petitioner, albeit the court has the power to order various forms of financial compensation or adjust the relief granted to take financial consequences into account; see Re Posgate & Denby (Agencies) [1987] BCLC 8. In addition I have in mind that the relief sought, or aspects of it, are for mandatory orders. In those respects the court will need to have a high degree of assurance that the orders sought are or will be shown to be justified, albeit the ultimate test to have in mind is to identify which course is likely to involve the least risk of injustice (and I have regard to the principles helpfully discussed at page 2988–2989 of Vol 2 of The White Book in these respects).

3

Henry Cole and Shawn and Cara Cole are all directors of all the Companies. Shawn and Cara Cole currently have control of the boards: if they vote in the same way they will outvote Henry Cole. Henry Cole complains of, amongst other things, being excluded from being able to participate properly as a director due to the conduct of Shawn and Cara Cole. They deny those allegations, but in any event complain that Henry Cole's complaints are motivated by spite, and also are believed to be generated by his daughter, Nicola Moon (formerly Cole), with whom Henry Cole now lives, for improper purposes. Nicola Moon was involved in managing the Companies until her resignation in 2015. Proceedings have since been brought against her by the Companies. Henry Cole is aged 85 years old and, whilst he has been actively involved in the management of the Companies in the past, he has not been as involved in recent years.

4

Henry Cole is a minority shareholder in the Companies (more precisely in two of the Companies, as one is a wholly owned subsidiary, though they can be viewed collectively for present purposes). But as matters currently stand he would hold the majority of votes at a general meeting of members due to the fact that some of the shares are held by the estate of Maureen Cole (“the Estate”), the late wife of Henry Cole, which has yet to be administered and in respect of which there is a disagreement. Henry Cole could therefore vote to remove Shawn and Cara Cole by an ordinary resolution passed at a duly convened and quorate meeting of members, under s. 168 CA 2006. However, Shawn and Cara Cole are unwilling to attend such a meeting, as they consider it would be inappropriate for Henry Cole to use that temporary position of power to remove them, and without their presence the meeting would not be quorate as only one member would be present. It is common ground before me that the Companies' Articles are such that s. 318 CA 2006 applies and a quorum of at least two is required. As a result, and whilst it does not feature in the Petition, the jurisdiction under s. 306 CA 2006 is now sought to be invoked on this Application, which enables the court to order a meeting to be called, and direct that one member present should be a sufficient quorum; see Union Music Ltd v Watson [2003] EWCA Civ 180, [2003] 1 BCLC 453, reviewed in Alvona Developments Ltd v The Manhattan Loft Corporation (AC) Ltd [2005] EWHC 1567 (Ch), [2006] BCC 199.

5

This is a company dispute, but it arises in a family run business and out of a family dispute, and must be understood in that context. Without intending any disrespect to any of them, I shall on occasion refer to members of the Cole family below simply by reference to their first names.

The background and the rival contentions

6

In this section of my judgment, unless stated otherwise, I shall draw on facts and matters set out in the parties' statements of case, and the evidence filed on the Application, which are either uncontroversial, or are supported by evidence which is not the subject of or capable of any substantial dispute. I shall also refer to the outline of the dispute between the parties, without going into the detail of every assertion and counter-assertion, since that is not necessary for me to explain the reasons for the interim relief I am prepared to grant.

7

The First Respondent company, Premiere Care Holdings Limited (“PCH”) was incorporated on 9 May 1962. It is a company limited by shares, with registration number 00723564. The Second Respondent company, Premiere Care (Southern) Limited (“PCS”) was incorporated on 28 June 1995. It is a company limited by shares, with registration number 03073816. The Third Respondent company, Penerley Lodge Limited (“PLL”) was incorporated on 8 March 2019. It is a company limited by shares, with registration number 11870873. The registered address of all three companies is Wellesley House, Duke of Wellington Avenue, London, SE18 655.

8

PCH was originally a cleaning business. It was initially incorporated and owned by Henry Cole and his late wife Maureen Cole, who were its only directors. In 1984 Henry and Maureen purchased a care home and PCH entered into the business of operating care homes.

9

PCS was also initially incorporated by Henry and Maureen, who were its only directors. It has always been wholly owned by PCH. It provides day to day operational services for the care home business of PCH.

10

In 1999 the couple's daughter, Nicola Moon (formerly Cole) was appointed director of PCH and PCS. In 2004 Maureen resigned as director from both PCH and PCS. On 4 February 2015 the Fourth Respondent, Shawn Cole, the son of Henry and Maureen, was appointed director of PCH and PCS. On 14 September 2015 Nicola resigned as secretary of PCH and PCS; she then resigned as director of those companies on 18 September 2015. Shawn and Cara Cole, in their Points of Defence, refer to the fact that this resignation was triggered by the discovery that Nicola had wrongly diverted £720,000 from PCH to the use and benefit of one of her companies', namely Heritage Homes (Southern) Limited, and in settlement of that Nicola agreed to repay £726,226 by the end of 2019. They go on to refer to her having failed to pay by that date as a result of which proceedings were issued ( BL-2020-001487) to recover the sum. I was informed by Mr Susman QC, for Shawn and Cara Cole and asserted representative for the Companies (I shall hereafter refer to him as representative of the Respondents collectively without a repetition of that qualification, asserted by Henry Cole), that judgment was entered against Nicola last week. In his Reply Henry Cole alleges these facts are irrelevant to the Petition, and in any event does not admit the allegations relating to the events in 2017 on the basis they are outside his direct knowledge. I find that a surprising assertion given that he has been a director of PCH throughout and he has asserted in his evidence on this Application that he was the chief executive officer (“CEO”) of the Companies (or at least one of them) in 2018.

11

On 3 October 2017 Shawn's wife, the Fifth Respondent, Cara Cole, was appointed director of PCH and PCS. As a result from that date the board of PCH and PCS comprised Henry, Shawn and Cara.

...

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1 cases
  • David Victor Garofalo v David Adrian Crisp
    • United Kingdom
    • Chancery Division
    • 20 October 2023
    ...of interim relief had been recognised as relief that is capable of being granted in certain circumstances: Re Premiere Care Holdings Ltd [2021] EWHC 1595. The grant of such relief will be rare, but it need not be the case that such intrusion be limited to no more than is “essential”, as sug......

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