The Secretary of State for Business, Enterprise and Regulatory Reform (formerly the Secretary of State for Trade and Industry) v Mr Scott Frazer Poulter and Another
| Jurisdiction | England & Wales |
| Judge | REGISTRAR DERRETT |
| Judgment Date | 11 April 2008 |
| Judgment citation (vLex) | [2008] EWHC J0411-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No 3310 of 2006 |
| Date | 11 April 2008 |
[2008] EWHC J0411-1
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
The Strand
London WC2 A2U
Registrar Derrett
Claim No 3310 of 2006
Mr Malcolm Davis-White QC and Mr Tiran Nersessian (instructed by Howes Percival LLP) appeared on behalf of the Claimant.
The Defendants did not appear and were not represented.
This is a trial of proceedings brought under sections 6 and 7 of the Company Directors Disqualification Act 1986 ( CDDA) by the Secretary of State for Business, Enterprise and Regulatory Reform, I shall call him the Secretary of State, against Scott Frazer Poulter (Mr Poulter) and Michael James Twist (Mr Twist) in relation to their conduct as directors of Radar Media Limited (the company).
The proceedings were commenced by claim form, which was issued on 10th May 2006. On 23rd May 2006 an order was obtained to facilitate the service of the proceedings, and all further documents in the proceedings, out of the jurisdiction on the second defendant, Mr Twist, by post at an address in Monaco.
The proceedings first came before the court on 17th July 2006 when directions were given for the filing of the evidence in answer, by both the first and second defendants, by 25th August, and the case was adjourned to 4th September 2006.
As I was told on the first day of this trial, there were difficulties with service of Mr Twist by post and so an order was obtained on 4th September 2006 to facilitate service by personal service or by leaving the documents at the Monaco address in addition to service by post. Nevertheless, service had been effected on Mr Poulter, and on 4th September 2006 he was required to file and serve his evidence in answer by 22nd September and the Claim was adjourned to 25th September 2006. On that occasion, there was an extension of time for the first defendant's evidence to be filed and served until 20th October, and the case was adjourned to 23rd October 2006.
On 23rd October, directions were agreed with the first defendant, and an order was made in debarring terms requiring his evidence to be filed by 20th November 2006, with an adjourned hearing on 27th November 2006. Meanwhile, on 6 November 2006 an Order was made extending the time for service of the Claim form on the second defendant to 10 March 2007. Difficulties having been experienced in serving the second defendant in Monaco, a further order was made permitting service on him at an address in London.
At the hearing on 27 November, the Secretary of State was given an opportunity to file and serve evidence in reply to the evidence of the first defendant, if so advised, by 15th January 2007. A further order was made, requiring the first defendant to serve his evidence by 4th December 2006. Again, it was on debarring terms.
The time period for the second defendant to file and serve evidence in answer was extended to 19th January 2007 and the application was adjourned until 22nd January 2007.
At the hearing on 22nd January 2007 the time for the Secretary of State to serve evidence in reply to the first defendant's evidence was extended to 19th February 2007 and an order was made in debarring terms, requiring the second defendant to file his evidence by 19th February 2007.
At the next hearing on 26th February 2007, an order was made requiring the first and second defendants to serve each other with copies of their own evidence by 2nd March 2007 and they were given permission to file evidence in reply thereto by 5th April 2007. A request for information had been made by the Secretary of State to the first defendant and an order was made requiring him to respond by 5th April, and if he failed to do so he would be debarred from relying upon evidence in relation to those matters set out in the request. A further hearing was set for 23rd April.
On 23rd April 2007, in relation to the second defendant, an order was made concerning information sought by the Secretary of State in a letter dated 5th April 2007, and he was given until 7th May 2007 to respond to that letter. The letter itself was to stand as a request for information under part 18 of the CPR. The Secretary of State was to have until the 25th June 2007 to file and serve evidence in reply. The case was adjourned to 9th July, with a time estimate of 15 minutes for directions.
On 14th June 2007, the solicitors, Laytons, who had acted until that stage for the first defendant, were removed from the court's record, so from that date onwards Mr Poulter was no longer represented.
On 9th July 2007, directions for trial were given and a listing appointment was fixed for 31st July 2007. An order was also made, requiring all deponents to the affidavits sworn in these proceedings to attend the trial of the matter for cross-examination on 21 days' prior written notice before the trial of the proceedings, and unless such deponents so attended as aforesaid, the evidence of the deponents was not to be read or used in evidence without the leave of the court.
On the first day of this trial, counsel for the Secretary of State explained what had happened as regards to the listing appointment. There does appear to have been some confusion. In this respect I had the benefit of a witness statement from Mr Morris Corker-Peacock dated 7 April 2008. The trial was not, in fact, listed formally on 31st July 2007 and it seems to have been listed by telephone at some point in August, around 21st August 2007. For some reason, the order reciting the trial date was not itself drawn up until January 2008.
The second defendant had solicitors on the record until 30th July 2007, when he served a notice of change, indicating that he was acting on his own behalf. Copies of that notice appear to have been dispatched around 17th August 2007.
I was satisfied, as a result of the submissions made by counsel on the first day of this trial, (which included taking me through the correspondence with the defendants since July 2007), that both defendants had received adequate notice of this trial date and that, in fact, the second defendant, Mr Twist, had had actual notice of this trial date. Therefore, I determined that it was appropriate to continue with the trial in their absence.
Notice of cross-examination, requiring the defendants to attend for cross-examination, was served by the Secretary of State. Obviously, in their absence, it has not been possible to cross-examine them on their evidence. We dealt with this at yesterday's hearing; where the defendants' evidence conflicts with that of the Secretary of State, then the Secretary of State's evidence is to be preferred. Nevertheless, I confirm that I have read the evidence filed by both defendants.
That is a summary of the procedural history of the action. In addition, before the proceedings were commenced, a section 16 letter was sent to both parties, on 18th October 2005. Both directors responded to that letter and were in correspondence with the Secretary of State from that date.
The evidence which is before the court (including copies of inter-parties correspondence) is of itself reasonably substantial. It is contained in some ten lever arch files. I confirm that I have read all of the evidence that is relevant to these proceedings and I have been taken to relevant documents by counsel for the Secretary of State.
The affidavit evidence is contained in the first file and comprises as follows:
(i). The first affidavit of Karol Anne Sanderson (Ms Sanderson), which is dated 5th May 2006. That is the evidence of the Secretary of State, the claimant, sworn in support of these proceedings.
(ii). The affidavit of Mr Poulter, which is dated 20th November 2006, and which is his evidence in answer.
(iii). The affidavit of Mr Twist, dated 19th February 2007, also as evidence in answer.
(iv). The response of Mr Poulter to the request for information which is dated 5th April 2007; and the response of Mr Twist to the request for information, given on 25th May 2007.
(v). The second affidavit of Ms Sanderson, dated 2nd July 2007,
(vi). The third affidavit of Ms Sanderson dated 29th February 2008.
(vii). The fourth affidavit of Ms Sanderson dated 13th March 2008.
On the first day of the trial I directed that the Secretary of State be permitted to adduce both of these last two affidavits as evidence in these proceedings.
The company, which is the subject of these proceedings, was incorporated in 1982 under the name of the Upward & Short Media Consultancy Limited. It changed its name on a number of occasions, but from January 1999, it was called Upward Brown Media Limited, which reflected the names and interests of the two individual owners and directors of the company, Mr Brown and Mr Upward.
The company was an advertising agency. As such, it organised advertising campaigns on behalf of clients and arranged and purchased space for broadcast and published media coverage.
Mr Poulter and Mr Twist acquired the company on 22nd May 2003, and both of them were appointed directors of the company on that date. They continued as directors until 16th March 2004 when they both resigned, and a company, Kandinsky UK Limited (Kandinsky UK), was appointed as Corporate Director. The Secretary of State's case is that, although not formally appointed directors between 16th March 2004 and 17th May 2004, Mr Poulter and Mr Twist were de facto directors of the...
To continue reading
Request your trial