Wilkinson (Peter Robert) v West Coast Capital and Others
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MANN,THE HONOURABLE MR JUSTICE WARREN,Mr Justice Warren |
| Judgment Date | 21 December 2005 |
| Neutral Citation | [2005] EWHC 1606 (Ch),[2005] EWHC 3009 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: No 3506 of 2004,Case No: 3506 OF 2004 |
| Date | 21 December 2005 |
[2005] EWHC 1606 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Mann
Case No: 3506 OF 2004
In the Matter of New Gadget Shop Limited and
The Gadget Shop Limited
And
In the Matter of the Companies Act 1985
MR. M. CRYSTAL Q.C., MR. D. ALEXANDER and MR. M. HAYWOOD (instructed by Hammonds) for the Petitioner.
MR. J. ONIONS Q.C. and MR. B. STRONG (instructed by McGrigors London) for the 1 st, 3 rd, 4 th and 6 th Respondents.
MR. D. SPITZ (instructed by Bevan Brittan LLP) for the 2 nd and 5 th Respondents.
Hearing dates: 18th JULY 2005
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 Justice Mann:
Introduction
This is the hearing of a pre-trial review in this petition, which is brought under s.459 of the Companies Act 1986. The main allegations in the petition are that certain of the defendants wrongfully diverted business opportunities and deprived the trading subsidiary of the subject company of the benefit of those transactions. The main dispute before me was on the question of the striking out of witness statements. Before turning to those issues, I will deal with some of the minor issues arising in relation to which there was in the end no dispute or little dispute.
Minor Issues
I rule on the minor issues as follows:
i) Disclosure applications were made by various of the defendants. Disclosure was sought of certain specified documents as against the petitioner and as against a Mr Wood, for whom the petitioner holds various of his shares as trustee. In the end Mr Michael Crystal QC, who appeared for the petitioner, accepted that there should be an order for disclosure by list of the relevant category of documents within 14 days. For these purposes he was able to accept this on behalf of Mr Wood as well. I therefore order that disclosure within 14 days.
ii) There was originally a dispute as to whether or not the court should make an order as to the order in which the defendants call their witnesses. In the end that was not pursued before me, and Mr Crystal indicated that there should instead be a date by which the claimant would be told of the order in which the defendants' witnesses would be called. Mr Onions QC, who appeared for the 1 st, 3 rd, 4 th and 6 th respondents ("the WCC respondents") resisted this notion. Alternatively, he said, if there were to be a date it should be 14 th October, which is approximately two weeks before the trial is likely to start. This is a factually complex s.459 petition, with some interlocking of evidence. It will be helpful to each party to know the order in which the other propose to call witnesses, but I do not think that it will be either helpful or necessary to make that too binding. The course of trials is often so fluid as to require flexibility in the order of calling witnesses, and sometimes questions such as the convenience of witnesses has to be addressed. I would therefore not wish to lay down anything which could be construed as a rigid timetable from which the parties could only depart with difficulty. I shall order that each party shall inform the other by 14 th October 2005 of the order in which they then intend to call their respective witnesses and that thereafter, up until the opening of the trial, 48 hours' notice be given of any intention to change that order. During the trial that order may be departed from by agreement between the parties or with the permission of the trial judge.
iii) There has been an order for a joint expert to be instructed in this case. There was a dispute as to whether he should be ordered to produce his report by the end of August or by the end of September. He was not represented before me, but a letter from him was placed before me which to some extent gave his views as to the proposed timings. In the light of that letter I shall order that he use his reasonable endeavours to produce his report by 4 p.m. on Wednesday 14 th September; and that in any event he produce it by 4 p.m. on Friday 23 rd September 2005. There must be a long stop date, and the purpose of this two-limb order is to indicate to him that in fact it would be desirable, if possible, that the report be produced before the long stop date.
iv) Questions for the expert. There was a dispute as to certain questions which the respondents propose to put to the expert, since they were said by the petitioner not to go to the specific question which the expert was asked to address at this point, namely the basis (but not quantification) of the valuation of shares if (as the petitioner claimed) the respondents were to be ordered to buy out the petitioner's shares. This dispute fizzled out when I proposed that the expert be required to address those points so far as (but only so far as) they went to the question of the basis of the valuation. I shall therefore so order.
v) Timetabling for the trial was floated before me but no-one (rightly in my view) asked me to make an order; I shall therefore not do so. At least one of the parties also flagged a potential dispute about how the costs of a livenote transcript would initially be borne. Very wisely, the parties decided to agree this matter without putting it before me for a ruling.
The witness statement issues
This brings me to the main issue on this pre-trial review, which took up most of the time in argument. This issue relates to the extent to which parts of the petitioner's witness statements ought to be struck out at this stage. The evidential passages fall into two categories. The first is a group of paragraphs which Mr Onions says cannot go to any of the issues in the petition in the way in which they are formulated, and if they remained in (and potentially lengthen the proceedings) would require disproportionate if not profitless further investigation in evidence. In essence he is asking me to strike out those passages on the grounds of irrelevance or conceivably proportionality. The second group of paragraphs are paragraphs that he invites me to strike out on the basis that they contravene the bar on adducing without prejudice correspondence. Mr Spitz, for the remaining respondents, supports Mr Onions. I will deal with the groups of the paragraphs in that order.
In support of his application that I should strike out paragraphs in the witness statements now on the grounds of obvious irrelevance and/or disproportionality, Mr Onions drew my attention to various cases which demonstrate the power of the court to control adducing evidence. Re Unisoft Group Limited (No 3) [1994] 1BCLC 609 was a case in which Harman J observed (in the context of a s.459 petition) that the courts had to be careful not to allow the parties to trawl through irrelevant grievances. In Vernon v Bosley [1999] PIQR 337 Hoffman LJ approved a passage from the judgment of Sedley J below, in which Sedley J had said:
"A point comes at which literal admissibility has to yield to the constraints of proportionality… such proportionality may in any one case depend on issues of remoteness, fairness, usefulness, the ratio of cost benefit in terms of time or money and other things besides."
Hoffman LJ approved that, with one slight modification:
"I think I would prefer 'relevance' to 'literal admissibility' but the general tenor of this passage expresses the principle which I have tried to explain in my own words, namely that in some cases a ruling on admissibility may involve weighing a degree of relevance against 'other things'."
Those cases, and indeed others in a similar vein, illustrate the very important powers of the court to control proceedings before it to make sure they remain manageable, proportionate and fair to the parties. If one were constructing a list of cases to which that power might be thought to be particularly appropriate, unfair prejudice petitions would be fairly high on the list. However, desirable though the power to control evidence obviously is, particular care must in my view be taken when it is sought to exercise the power before a trial. It is noteworthy that the two cases which I have referred to above were both cases in which the issues as to evidence arose during the course of trials. By the time that the issue arises in that context, the judge is likely to have a much fuller overall picture of the issues in the case and of the evidence which is going to be adduced in support of them. In a large number of cases, he or she is likely to be in a better position to make judgments which turn on the real value of the line of evidence in question and its proportionality, and in very many cases its admissibility. A court which is asked to approach these questions at the interlocutory stage is much less likely to have that picture, and should be that much more careful in forming a view that the evidence is going to be irrelevant, or if relevant, unhelpful and/or disproportionate. One must also bear in mind the extent to which it is desirable to consider these matters at all at an interlocutory stage. One must be on one's guard, in applications such as this, not to allow case management in relation to witness statements to give rise to significant time-and cost-wasting applications; those should not be encouraged. In my view, I should only strike out the parts of the witness statements which I am currently considering if it is quite plain to me that, no matter how the proceedings look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it. With evidence of this nature, that is likely to be...
To continue reading
Request your trial
-
O'Donnell v Shanahan
...prejudice and breach of fiduciary duty in this sort of context has recently been comprehensively reviewed by Warren J in Wilkinson v West Coast Capital and others [2005] EWHC 3009 (Ch): see in particular at paras 230 —303. In the light of that review, it is unnecessary for me to address the......
-
[1] Richard Vento [2] Lana Vento [3] Gail Vento [4] Renee Vento [5] Nicole Mollison [6] First Nevis Trust Company Ltd (as trustee of: Much Love International Dynasty Trust Vita International Dynasty Trust Loki International Dynasty Trust Founders International Dv Dynasty Trust) Respondents/Applicants v [1] Keithley Lake [2] Fidelity Insurnce Company, Ltd [3] Alliance Royalties, Inc. [4] Westminister, Hope & Turnberry, Ltd Applicants/Respondents [ECSC]
...in all the circumstances, the impugned paragraphs should be excluded. [5] In the case ofWilkinson v West Coast Capital and others [2005] EWHC 1606, the Mann J stated at paragraph 5: "A court which is asked to approach these questions at the interlocutory stage … should be that much more car......
-
Condron v ACC Bank and Others and Cuttle v ACC Bank Plc
...WLR 1038; DPP v Kilbourne [1973] AC 729; Byrne v Grey [1988] IR 31; Berkeley v Edwards [1988] 1 IR 217; Wilkinson v West Coast Capital [2005] EWHC 1606, [2005] All ER 321; Re Unisoft Group Limited (No 3) [1994] 1 BCLC 609 and Vernon v Bosley [1999] PIQR 337 considered - Rules of the Superi......
-
O'Donnell v Shanahan
...by any reasonable person, result in a conflict.' 39 Warren J took up that point in Wilkinson v. West Coast Capital and others [2005] EWHC 3009 (Ch), at paragraphs [252] and [253], where he instanced a case in which a director of a company selling fashion clothing could hardly be in breach o......
-
RECONFIGURING THE NO CONFLICT RULE
...Ltd v GulliverELR[1967] 2 AC 134 at 144–145, per Lord Russell, and at 153, per Lord Macmillan, [1942] 1 All ER 378 at 389 and 392. 10 See [2007] BCC 717 at [309]–[312]. 11 Note that Companies Act 2006 (c 46) (UK) s 175(7) provides that “any reference in this section to a conflict of interes......
-
Guiding Principles for Directorial Conflicts of Interest: Re Allied Business and Financial Consultants Ltd; O'Donnell v Shanahan
...faith in the best interests of thecompany, now reformulated as a statutory duty to act to promote the success of20 [2005] EWHC30 09 (Ch);[2007] BCC 717at [252]-[253].21 ibid at [253].22 [1891] 2 Ch 24 4.Guiding Principles for Directorial Con£icts of Interest600 r2011The Author.The Modern La......