Sir Henry Royce Memorial Foundation v Mark Gregory Hardy
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 26 March 2021 |
| Neutral Citation | [2021] EWHC 714 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CR-2020-BRS-000017 |
| Date | 26 March 2021 |
[2021] EWHC 714 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
INSOLVENCY AND COMPANIES LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews (sitting as a Judge of the High Court)
Case No: CR-2020-BRS-000017
Charlie Newington-Bridges (instructed by Willans LLP) for the Claimant
The Defendant appeared in person
Hearing dates: 19 January 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.
Introduction
This is my judgment on the trial of a claim under CPR Part 8 between a company limited by guarantee and registered charity (the claimant) and one of its members (the defendant), for orders under section 117 of the Companies Act 2006, relating to a request made by the defendant of the claimant under section 116 of that Act for access to the register of members. The claim was tried before me remotely during the coronavirus pandemic, using the MS Teams videoconferencing platform, when Mr Charlie Newington Bridges of counsel represented the claimant and the defendant appeared in person.
Procedure
Witness statements
The claim form was issued on 18 February 2020, and the defendant acknowledged service on 29 February 2020, indicating an intention to contest the claim. The claim form was accompanied by a witness statement made by Jane Elizabeth Pedler also on 18 February 2020, and an exhibit of 103 pages. Ms Pedler was then a director of the claimant. The defendant made a first witness statement in these proceedings on 13 March 2020, with an exhibit of some 213 pages, although the defendant had already made what he called a “witness statement” (but not in any existing legal proceedings) on 4 February 2020, and Ms Pedler referred to this in her first witness statement. She made a second witness statement in these proceedings on 26 March 2020, by which time she had ceased to be a director of the claimant, but was still authorised on its behalf to make the statement.
In accordance with the procedure set out in CPR rule 8.5, that would normally be the end of the evidence. The defendant, however, purported to make a further witness statement, which he called his second, on 21 April 2020. Of course, since it did not comply with rule 8.5, and no permission had been given to him by the court, it was not evidence upon which he could rely on these proceedings. This statement exhibited, amongst other documents, a transcript running to some 500 pages of a meeting of a different company, the Rolls-Royce Enthusiasts Club (“the Club”), which features at various points in the story of this case.
On 31 July 2020 District Judge Watson gave directions for the trial of this claim. In relation to the transcript of the meeting of the Club, he directed that the defendant made a further witness statement, not exceeding five pages in length, identifying the passages in the transcript on which he wished to rely and explaining why he wished to rely on them. On 20 August 2020 the defendant made a further witness statement (of five pages), which he originally called his third, exhibiting another 527 pages, including the whole of the witness statement of 21 April 2020 and the whole of the transcript of the Club meeting. The statement of 20 August 2020 refers to some 117 pages in the transcript, but does not identify particular passages in it. In accordance with the directions given by District Judge Watson, on 2 September 2020 Ms Pedler (by then once more a director) made a third witness statement, responding to the defendant's statement of 20 August 2020.
Listing
In Burry & Knight Ltd v Knight [2014] EWCA Civ 604, all three members of the Court of Appeal (Arden, Briggs, Christopher Clarke LJJ) agreed that applications under section 117 should normally be dealt with summarily, on witness statement evidence alone, rather than at trial after cross-examination: see at [28], [113], [117]. For whatever reason, that did not happen here, and the matter was listed for trial in the usual way. That has caused some potential difficulty, which I will come back to. I did not deal with this matter at the interlocutory stage but, certainly with the benefit of hindsight, I do not think that this was a case which called for a full trial. Nevertheless, we are where we are.
Publicity
After the trial had been listed, there were discussions between the parties as to the manner in which it should be tried and in particular how the proceedings were to be accessible to the public. The defendant insisted that there were very many members of the public who would wish to participate in the trial and therefore proposed that the trial be web cast on Youtube or a similar system. By the time of the pre-trial review, on 6 January 2021, however, the defendant was content for members of the public to make themselves known to the court and to receive a link that would enable them to join the hearing. At the trial itself, apart from the parties and their representatives, there were about 14 members of the public who attended from time to time during the day.
Witnesses
At the trial both Ms Pedler and the defendant were cross-examined on their witness evidence. I record here my impressions of both of them. Ms Pedler was a clear and businesslike witness, both knowledgeable about the affairs of the claimant (and the Club) and also very fair in the approach that she took to giving her evidence. I am satisfied that she was telling me the substantive and not just the literal truth. The defendant was a more complex witness. He was not only highly intelligent but also on top of all the details of the case, and ready with answers to almost any question. On the other hand, he was inclined to split hairs, which meant that (so far as I could tell) he did not say anything which was strictly untrue, but made his evidence more tricky to follow and to rely on. I found him to be a much less satisfactory witness than Ms Pedler. Where their evidence conflicted, I generally preferred that of Ms Pedler.
Burden of proof
Before turning to consider what facts I find, I remind myself that this is the claimant's claim, and the claimant accordingly bears the burden of proof, on the usual civil standard of balance of probabilities. In addition to the written and oral evidence of the witnesses who gave evidence before me, I am also able to take into account, as admissible evidence, the documents which are found in the bundle prepared for the trial: see CPR PD 32, paragraph 27.2. But I bear in mind that, for the most part, I have not seen the makers of these documents give evidence before me, so that I could not observe their demeanour, and they could not be cross-examined. Nor were they on oath when they made them. It is a matter for me what weight to give to these documents.
Facts found
On the basis of the material before me, I find the following facts. The organisation which became the claimant was founded in 1977, but the claimant in its current form was incorporated on 13 February 2009 as a company limited by guarantee. It is also registered as a charity with the Charity Commission. The aim of the claimant (as set out on the website of the Charity Commission) is
“Cherishing the Legacy Providing a safe and accessible home at the Hunt House for the archives, memorabilia and artefacts from the life and history of Sir Henry Royce and the old Rolls-Royce company. Promoting the Ideals To support excellence in engineering by a programme of awards, lectures, exhibitions and events to stimulate interest in engineering issues.”
The claimant is run by a board of directors elected by the guaranteeing members. They are all unpaid volunteers. Most of its income comes from the 250 voting members of the Club, although with additional support from the wider public. Gross income for the year ended June 2018 was £101,893, all of which was spent. Gross income for the year ended June 2019 was £194,434, of which £127,599 was spent. The claimant owns a property known as Hunt House, 70 High Street, Paulerspury, Towcester NN12 7NA, which is its headquarters, and where the archives memorabilia and artefacts from the life and history of Sir Henry Royce are kept.
The defendant is a businessman who appears to have been involved in many different companies and businesses in his career. He is clearly very experienced in litigation, as will appear later. On 19 December 2019 he became the finance director of the Club, although he ceased to be a director on 9 April 2020. He is also a member of the claimant, by virtue of having paid a subscription to become one. He first became a member of the claimant in late November 2019, after the date on which the annual general meeting for that year would ordinarily have been held (although in fact it was not).
Although the Club and the claimant have been described as “sister companies”, this is inaccurate. They do not have a common membership, and, although the board of each company nominates directors to the board of the other, there is no necessary identity between the directors of one and the directors of the other. The current position is that there are no persons who are directors of both companies, although there have been in the past. As with the defendant himself, there are members of one who are members of the other. Moreover, the claimant has granted the Club a lease to use its property as its headquarters as well, for which a rent is paid.
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