Nicholas John Clwyd Griffith v Maurice Saleh Gourgey
| Jurisdiction | England & Wales |
| Judge | Sir Nicholas Warren |
| Judgment Date | 25 October 2018 |
| Neutral Citation | [2018] EWHC 2807 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CR-2013-003499 (NO.1805 OF 2013) Case No: CR-2013-003502 (No. 1807/2013) |
| Date | 25 October 2018 |
[2018] EWHC 2807 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
CHANCERY DIVISION
COMPANIES COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Nicholas Warren
Case No: CR-2013-003499 (NO.1805 OF 2013)
Case No: CR-2013-003500 (No. 1806/2013)
Case No: CR-2013-003502 (No. 1807/2013)
In the Matter of Bankside Hotels Limted
And in the Matter of the Companies Act 2006
In the Matter of Pedersen (Thameside) Limited
And in the Matter of the Companies Act 2006
In the Matter of G & G Properties Limited
And in the Matter of the Companies Act 2006
Christopher Parker QC and Oliver Phillips (instructed by Blake Morgan LLP) for the Petitioners
Andrew Thompson QC (instructed by Simmons & Simmons) for Truchot Trustees Limited
Daniel Lightman QC, Adil MohamedbhaiandEmma Hargreaves (instructed by Olephant Solicitors) for Maurice Gourgey, Neil Gourgey, Charles Gourgey, Brentford Hotels Limited and Jane Nairac
Hearing dates: 30 and 31 July 2018
Introduction
I have already given a judgment in these petitions (“the first Judgment”). This judgment should be read with the first Judgment. I do not repeat the material in it. I adopt the definitions which I adopted in the first Judgment. I now have before me applications by Mr Griffith to amend the Bankside and G&G petitions and by Mewslade to amend the Pedersen petition and corresponding applications to amend the PoC.
The applicable principles
In paragraphs 10 to 27 of the first Judgment, I addressed the general principles applicable to applications to strike out pleadings and to applications to amend pleadings. I do not repeat them here although I highlight the following:
a. The principle that a party's case is defined by their pleading is of particular importance in the case of petitions under section 994: see paragraph 16.
b. The test of attribution of unfairly prejudicial conduct to a respondent is whether the respondent is connected with the conduct in a way which would make it just to grant a remedy against them or whether they were concerned either directly or indirectly in conducting the affairs of the company in an unfairly prejudicial manner: see paragraph 22.
c. The relief must be proportionate to the conduct complained of and the petitioner must specify the relief sought: see paragraph 24.
d. A party seeking to amend must fully particularise the proposed amendments: see paragraph 26.
e. The court must be satisfied that the amended claim has a real, as opposed to fanciful, prospect of success. The case must be better than merely arguable: see paragraph 27.
In relation to the test described at b. of the preceding paragraph, (the F&C test stated by Sales J) it is worth referring to the further elucidation of Asplin J in Re TPD Investments Ltd [2017] EWHC 657 (Ch) at [158] to which Mr Lightman has referred me. She said this:
“… in order to contemplate such an order it is necessary, as Sales J put it, that the defendant in question is so connected to the unfair prejudice in question that it would be just in the context of the statutory scheme to grant a remedy against him. I agree with Mr Mallin that merely being connected with the acts complained of cannot be enough. If that were the case, personal liability would be imposed in most cases because a company acts through its board of directors. As a matter of logic, more is necessary. In some circumstances, no doubt, relevant factors would be whether the company in question had been a mere cypher for the individual and whether that individual had benefitted, for example, from the diversion of the company's business or had otherwise benefitted from the unfairly prejudicial conduct.”
The Bankside amendment application
In the first Judgment, I effectively struck out the claims against Truchot. Truchot's strike out application had been listed to be heard in the window 16 to 20 April 2018. On 11 April, Mr Griffith served an application seeking to re-amend the Bankside Petition (as well as to amend further the PoC) in the form attached to the application (“ the first proposed amendments”). This application was supported by the 10 th witness statement of Paul Caldicott. Mr Caldicott stated that the amendments arose out of matters which emerged in the course of Truchot's earlier successful application to establish that it had not been served with the Bankside petition. No explanation has ever been given about why this application was served so long after Mr Anderson's judgment on 10 November 2017 or why the allegations could not have been included in the amended Bankside petition served on 29 November 2017.
Mr Parker's skeleton argument for the April hearing said nothing of substance about the amendment application. In fact, it turned out that he did not wish to make the application. This was because his primary case was that the Bankside petition was well-founded against Truchot without amendment; and he no doubt feared that, if the Bankside petition were amended, it would open up the possibility of the other respondents being able to plead in full to all of the allegations contained in it, notwithstanding the order striking out their defences.
In his oral presentation in resisting Truchot's strike-out application, Mr Parker argued that there is no material distinction to be drawn between Mr Gourgey and his family trust: at the inception of the company, Mr Gourgey's entitlement to 50 per cent was put in the name of the family trust and Mr Gourgey thereafter conducted the affairs of the company on the basis that those shares were, to all intents and purposes, to be treated as his. In a note handed to me on the second day of the hearing (after completion on the first day of his oral submissions on this aspect of the case), it was argued:
a. that Truchot took its shares “subject to the equitable constraints imposed by the Understanding (and subject to the possibility of its being ordered to buy-out the minority shareholder)”;
b. that certain passages in the Points of Defence served by the other respondents were relevant to the position of Truchot: according to Mr Parker, those respondents acknowledged that Mr Gourgey and Truchot could be treated interchangeably for the purposes of sections 994 and 996. I would add, however, as I noted in the first Judgment, that it has never been Mr Parker's argument that the Trust is a sham; and
c. that Mr Gourgey had been in the habit of holding himself out as having Truchot's complete authority.
These were all arguments which I had in mind when I delivered the first Judgment. I rejected them, indicating, albeit obiter, that I would also have rejected any application to amend in the form of the first proposed amendments. At paragraph 152 of the first Judgment I said this:
“I hope that I made it clear at the hearing [that is to say in April] that I regarded the hearing as the occasion on which any further or alternative amended pleading against Truchot should be put forward. None has been put forward.”
No further proposed amendment was, however, put forward at the hearing (which ran for 3 days on 19, 20 and 23 April 2018). A draft of the first Judgment was sent to Counsel for correction, in the usual way, on 3 May. On the morning of the hand-down on 9 May, a further draft re-amended Bankside petition was produced on behalf of Mr Griffith, which was circulated to the parties and to me. Mr Parker indicated a wish to apply to amend the Bankside petition in that form (“ the second proposed amendments”). No application had been issued and Truchot and the other respondents were not in a position to make submissions in relation to the proposed amendment. There would not have been time, in any event, for an application to be heard on 9 May. I therefore adjourned the hearing. It was anticipated that the matter would go off until June. In the event, a convenient date for Counsel and myself could not be found until the end of July. And it was not until 13 July, more than 2 months after the hand-down of the first Judgment, that an application was issued to re-amend the Bankside petition in the different form attached to that application (“ the third proposed amendments”). That is the application which is now before me.
The application is not supported by any evidence other than the brief contents of the notice itself. This is surprising given that I had said that a formal application to amend should be made explaining precisely the evidential basis for the proposed amendments and why they were being sought at that point of time and given what I had said in the first Judgment about the principles applicable to amendment applications.
In summary, Truchot contends, first, that the entire application is an abuse of process in the light of my observations that the April hearing was the time for making any application and in the light of the absence of any proper evidence in support of the application. It contends, secondly, that the third proposed amendments do not cure the defects identified in the first Judgment and that even the amended claim against Truchot does not have a real prospect of success. Accordingly, the application should be dismissed.
Logically, I suppose, I should deal with the abuse...
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Nicholas John Clwyd Griffith v Neil Joseph Gourgey
...16 The judge heard these applications on 30–31 July 2018 and handed down judgment on 25 October 2018 (the second judgment): see [2018] EWHC 2807 (Ch), [2019] 2 BCLC 174. He dismissed the application to amend the Bankside petition and the points of claim in so far as they related to Truchot......
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Developments in Unfair Prejudice Litigation
...[2013] EWHC 1652,per Vos J at 125 (go back) 5See, for example,Re Bankside Hotels Ltd [2019] BCLC 434, and Re G&G Properties Limited [2018] EWHC 2807 (Ch) (go 6F&C Alternative Investments (Holdings) Limited v Barthelemy (No 2) [2012] Ch 613, per Sales J at 1096 (go back) 7Re TPD Investments ......