Nicholas John Clwyd Griffith v Maurice Saleh Gourgey
| Jurisdiction | England & Wales |
| Judge | Sir Nicholas Warren |
| Judgment Date | 09 May 2018 |
| Neutral Citation | [2018] EWHC 1035 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CR-2013-003499 (No. 1805 of 2013) |
| Date | 09 May 2018 |
[2018] EWHC 1035 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT
COMPANIES COURT
IN THE MATTER OF BANKSIDE HOTELS LIMITED
AND IN THE MATTER OF THE COMPANIES ACT 2006
IN THE MATTER OF PEDERSEN (THAMESIDE) LIMITED CR-2013-003500 (no.1806/2013)
AND IN THE MATTER OF THE COMPANIES ACT 2006
IN THE MATTER OF G & G PROPERTIES LIMITED CR-2013-003502 (No. 1807/2013)
AND IN THE MATTER OF THE COMPANIES ACT 2006
Royal Courts of Justice
7 Rolls Building,
Fetter Lane, London, EC4A 1NL
Sir Nicholas Warren
Case No: CR-2013-003499 (No. 1805 of 2013)
Christopher Parker QC and Oliver Phillips (instructed by Blake Morgan) for the Petitioners
Andrew Thompson QC (instructed by Simmons & Simmons) for the Second Respondant
Daniel Lightman QC and Adil Mohamedbhai ( Instructed by Olephant Solicitors) for Maurice Salek Gourgey, Neil Gourgey, Charles Gourgey, Brentford Hotels Limited and Jane Nairac
Hearing dates:
Judgment Approved
I have before me a number of applications in three related unfair prejudice petitions under section 994 Companies Act 2006 2004 (“section 994”) concerning Bankside Hotels Ltd (“Bankside”), Pedersen (Thameside) Ltd (“Pedersen”) and G&G Properties Ltd (“G&G”). The petitioner in the Bankside and G&G petitions is Nicholas Griffith (“Mr Griffith”) and in the Pedersen petition is Mewslade Holdings Ltd (“Mewslade”), a company in which Mr Griffith is interested.
The petitions are being case-managed together. They have been before the Court on a number of occasions with a number of judgments having been produced. For present purposes, I mention the following judgments:
a. The judgment of Simon Monty QC sitting as a deputy High Court Judge dated 13 November 2014;
b. The judgment of Simon J dated 23 April 2015 (“the Simon judgment”);
c. The judgment of Mark Anderson QC sitting as a deputy High Court Judge dated 10 November 2017 (“the Anderson judgment”);
d. The judgment of HHJ Judge Pelling QC (sitting as a High Court Judge) dated 12 December 2017 (“the Pelling judgment) reported at Re Pedersen (Thameside) Ltd [2017] EWHC (Ch) 3406, [2018] BCC 58.
The background to the petitions and the current state of the proceedings will be apparent from a reading of those judgments. I do not propose to repeat any of it in this judgment.
The result of the hearing before Simon J was that the Amended Points of Defence of certain respondents in each petition stood struck out, that is to say the consolidated defence of those respondents in all three petitions. As will be apparent from the judgments which I have mentioned, the respondents whose defences were struck out are Mr Gourgey, Truchot Trustees Ltd (“Truchot”) and Bankside (in relation to the Bankside petition), Mr Gourgey, Francois Nairac, Pedersen and Brentford Hotels Ltd (“BHL”) (in relation to the Pedersen petition) and Neil Gourgey (“Neil”) Charles Gourgey (“Charles”) and G&G (in relation to the G&G petition). Neil and Charles are Mr Gourgey's sons. Truchot is, and was at all material times, the trustee of a family settlement created by Mr Gourgey; Mr Gourgey and his wife were originally discretionary beneficiaries but were excluded from further benefit as from 22 December 2004. Ms Nairac is now deceased. Jane Nairac is now the sole executrix of his estate.
Following delivery of the Simon judgment, Simon J made an order dated 1 May 2015, paragraph 4 of which provided as follows:
“There be a further hearing to consider the further steps necessary to dispose of the Petitions in the light of this order, to be listed before a Judge of the High Court with a time estimate of two days. 28 days prior to that hearing the parties shall file a list of issues to be determined at that hearing.”
An appeal from Simon J's decision was unsuccessful.
The hearing before me included the hearing referred to in that paragraph. It should be noted that the applications before Simon J were (1) an application on the part of the petitioners for final relief on the petitions and (2) an application for relief from sanctions by the respondents. The first of those was dated 29 January 2015 in which the petitioners “of what, if any, relief, the petitioners might now … and further directions where the Amended Points of Defence stand struck out”. It does not state on its face under what provision of the CPR or otherwise it is made.
The petitioners and the respondents have filed lists of issues, which largely overlap. The petitioners are clearly hoping that I will grant them some form of final relief, on the basis that it is their application before Simon J which is now before me. However, there are a number of other applications before the Court. I considered it appropriate to deal with some, at least, of those, before it would be possible to embark on the questions of what, if any relief, the petitioners might now be entitled to.
As will be apparent from a reading of the Anderson judgment, Truchot was not properly served with the Bankside petition. It knew nothing of it until 17 March 2016. The result of the Anderson judgment was that service of the Bankside petition on Truchot was set aside on the basis that the solicitors purporting to act for it had no authority to do so and with the result that the strike out of the Points of Defence had no impact on it. The Bankside petition has now been served, and directions will need to be made in the ordinary way for the further conduct of it.
The matters which I have heard are these:
a. An application by Truchot to strike out certain references to it in the Bankside petition and the current version of the Points of Claim (“the PoC”) on the grounds that neither of them discloses any reasonable grounds for bringing the claim to the relief sought (or any relief) against it. That application has been met by a draft of amendments (“the Bankside draft amendments”) to the Bankside petition and the PoC for which permission is likely to be sought if I rule against Mr Griffith in relation to them.
b. An application by Neil and Charles in the G&G petition and the PoC to strike out certain references to them on the grounds that neither of them discloses any reasonable grounds for bringing the claim to the relief sought (or any relief) against either of them, alternatively an order that Mr Griffith apply within 28 days of the hearing for permission to amend them. Proposed amendments to the G&G petition have been produced since the hearing, which I will consider when this judgment is handed down.
c. The issue of the extent to which the petitioners need to adduce any evidence to establish unfair prejudice sufficient to found relief under section 994 against the respondents whose Points of Defence have been struck out.
d. An application by Mewslade to amend the Pedersen petition. At the hearing, it became apparent that Mr Griffith wished to make amendments going beyond those specified in the application. I will deal with this application too when this judgment is handed down.
e. An application by Mr Griffith that the Bankside petition should be stood over as against Truchot pending the outcome of that petition as against Mr Gourgey and, assuming that Mr Gourgey is ordered to purchase Mr Griffith's shares, pending satisfaction of such an order, the purpose being to allow Mr Griffith to proceed with the Bankside petition against Truchot if Mr Gourgey proves unable to meet the purchase price.
The strike-out applications
There are some general principles which I need to address which are relevant to both applications to strike out. But before I do that, it is important to remember the statutory jurisdiction which the petitioners invoke by their unfair prejudice petitions.
Section 994 permits a member of a company to apply to the Court by petition for an order on the ground (so far as relevant in the present case) that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of the members generally or of some part of its members. If unfair prejudice is established, the Court has wide ranging powers under section 996 for “giving relief in respect of the matters complained of”
The essence of the powers under section 996 is to give a remedy where there is complaint about the way the company's affairs are being conducted through the use (or failure to use) powers in relation to the conduct of the company's affairs provided by its constitution. The section is concerned with the company's affairs rather than the affairs of individuals and concerned with acts done by the company or by those authorised to act as its organs as well as with internal management matters. The conduct of a member of his own affairs, for example by requesting a general meeting of the company or seeking answers to an excessive number of questions, is irrelevant. Relief is to be granted only in respect of the matters complained of: Re Legal Costs Negotiators Ltd [1999] BCLC 171at 195 – 196, CA. Relief can be given in against a person only where some complaint is made about the conduct of such person.
In the same case, it was said that the Court on an application to strike out an unfair prejudice petition can look at the realities of...
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