Chambers UK 2021

Serle Court maintains a solid reputation for company law work, particularly as it pertains to contentious matters such as breach of duty claims, derivative claims and shareholder disputes. Members here are frequently engaged to advise on matters with significant cross-border dimensions, including those in the BVI, Hong Kong and the Cayman Islands. Recent instructions include a role in significant shareholders' litigation concerning the Kings Solution Group. Several members continue to be involved in the major Edwardian Group litigation. Interviewees report: "The set has great strength and depth and very capable barristers," and: "The set is extremely good; the barristers are all nice to work with and take responsibility for the work they do. There is a collaborative feel to the set."

Client Service: "The clerks are very responsive, helpful and commercial." "They're efficient, friendly and sensible." "It's a very well-organised set."

Silks:

Alan Boyle QC: "He has a tremendous courtroom manner and is able to hold the court's attention. He gets to the kernel of the issue and has the ability to assimilate a huge volume of information."

Lance Ashworth QC:  "Lance’s strength is that he gives robust advice. He is client-friendly and efficient with his paperwork."

Philip Marshall QC: "He is an extraordinary advocate of huge energy and enthusiasm."

Philip Jones QC: "He's very responsive and clear-minded which, from a strategic point of view, is very helpful."

David Blayney QC: "He's very easy to deal with and particularly good from a strategic point of view."

Daniel Lightman QC: "Daniel is excellent; he's responsive and works hard."

Timothy Collingwood QC: "Tim is easy to work with as he's bright, efficient, and pragmatic."

Juniors:

David Drake: "He is knowledgeable in the area, user-friendly and able to think laterally and come up with solutions."

Paul Adams: "His knowledge is astonishing and his writing is incredibly polished. He absolutely shines."

Legal 500 2021

Silks:

Alan Boyle QC: "Very responsive and experienced. He is an absolute delight to work with."

Phillip Marshall QC: "An exceptionally intelligent and thorough individual."

Philip Jones QC: "He provides clear, concise oral advice and it is clear that he is always on top of the papers."

Lance Ashworth QC:"Bright and engaging."

Daniel Lightman QC: "Extremely bright, is inventive with his arguments and has good judgement."

Timothy Collingwood QC: "Noted for breach-of-duty cases."

Juniors:

David Drake: "Clever and a pleasure to work with."

Giles Richardson: "Quick and incisive, good with clients and fun to work with."

Thomas Braithwaite: "Super efficient! Very knowledgeable and able to simplify very complex matters."

Matthew Morrison: "His analysis of the issues is always very articulate and thorough."

Dan McCourt Fritz: "A collaborative team player who is great on detail."

Paul Adams: "Excellent, and always proactive and helpful."

Thomas Elias: "Very bright, clear-thinking and tactically astute."

Emma Hargreaves: "She is very bright, ferociously hard-working and tactically very savvy."

Kulkarni v Gwent Holdings Limited & St Joseph’s Independent Hospital Limited:

In a judgment handed down this morning, Deputy (former Chief) Master Marsh dismissed an application for summary judgment made by Dr Rohit Kulkarni, a consultant orthopaedic surgeon who is a minority shareholder in the company which owns St Joseph’s Hospital in Newport, Gwent.  The summary judgment application, which has been issued before the defendants had filed defences, was based in part on the compulsory share transfer provisions of a shareholders’ agreement between Dr Kulkarni and the majority shareholder, Gwent Holdings Limited.  Dr Kulkarni claimed that Gwent had committed irremediable breaches of the shareholders’ agreement, thus triggering the compulsory transfer provisions.  In his judgment in Kulkarni v Gwent Holdings Limited and St Joseph's Independent Hospital Limited [2022] EWHC 1368 (Ch), Deputy Master Marsh refused to order the rectification of the company’s register of members under section 125 of the Companies Act 2006 with retrospective effect.  He went on to refuse to grant relief entitling Dr Kulkarni to acquire Gwent’s shares compulsorily, noting at [92] that “the issue of remediability is unlikely to be suitable for determination in most cases on a summary basis because, as in this case, the court does not have all the evidence it needs to make a determination about the proper construction of the contract and whether on the specific facts the breach was remediable”. 

Daniel Lightman QC and Thomas Braithwaite, instructed by Ed Husband and Helen Dent of VWV, represented Gwent Holdings Limited in its successful opposition to the summary judgment application. 

To read the judgment, please click here.

Re Klimvest plc:

Minority shareholders in plcs will welcome a judgment handed down this morning which has broadened their options.  For the first time in this jurisdiction, the Court has ordered the winding up of a listed plc on the just and equitable ground under section 122(1)(g) of the Insolvency Act 1986 for loss of substratum.  In a reserved judgment following a two-week trial in February 2022, in Re Klimvest plc [2022] EWHC 596 (Ch) the High Court clarified and modernised English law in line with more recent Australian authorities. HH Judge Cawson QC (sitting as a High Court Judge) held that the identification of a company’s purpose or substratum is a matter of equity between the company – even a listed plc – and its shareholders, rather than a formalistic exercise in construing the corporate constitution.  The purpose is lost, potentially triggering winding-up by the Court, not only where carrying it out is “practically impossible” for the company, but also where it has been, or will be, abandoned.  Judge Cawson QC applied the dictum of Jenkins J in Re Eastern Telegraph Co., Ltd [1947] 2 All ER 104 that “if a shareholder has invested his money in the shares of the company on the footing that it is going to carry out some particular object, he cannot be forced against his will by the votes of his fellow shareholders to continue to adventure his money on some quite different project or speculation”.

Judge Cawson QC also analysed whether, as a matter of law, equitable or ‘quasi-partnership’ constraints on the exercise of shareholders’ legal rights can ever arise in a public listed company, or whether as Jonathan Parker J had held in Re Astec (BSR) plc [1999] BCC 59, “the concept of ‘legitimate expectation’… can have no place in the context of public listed companies”.  Without determining whether Re Astec had been correctly decided, Judge Cawson QC commented that “on appropriate facts, equitable considerations might arise as between shareholders in a public listed company”.  While this would be “a rare event”, “there might, conceivably, be circumstances where the existence of those equitable considerations might found the basis for some limited form of relief under Section 996 of the Companies Act 2006”.

Daniel Lightman QC and Max Marenbon represented the successful petitioner, instructed by Tamar Halevy of Marriott Harrison LLP.

To read the judgment, please click here.

Navigator Equities Limited and Vladimir Chernukhin v Oleg Deripaska:

The Court of Appeal has today handed down an important judgment on committal applications in Navigator Equities Limited and Vladimir Chernukhin v Oleg Deripaska [2021] EWCA Civ 1799. The court set aside the order of Andrew Baker J (striking out the committal application against Mr Deripaska as an abuse of process) and has remitted the matter back to the Commercial Court for trial.

The judgment is available below.

James Weale (led by Jonathan Crow QC) represented the successful appellants, instructed by Ted Greeno and Greg Pantlin of Quinn Emanuel Urquhart & Sullivan UK LLP.

Key Points

The claimants brought committal proceedings against Mr Deripaska in respect of alleged breaches of his undertakings to the court in June 2018 relating to a portion of shares in EN+ Plc (Jersey), of which Mr Deripaska was the ultimate beneficial owner. The alleged breaches consisted of Mr Deripaska procuring (or, alternatively, failing to block) a vote of EN+ Plc in December 2018 in favour of “redomiciliation” from Jersey to a special administrative region of Russia. The Claimants alleged that the effect of such redomiciliation was to destroy the true value of the undertakings by cancelling the shares which formed their subject matter and replacing them with shares in a company located in Russia (where enforcement was extremely difficult if not impossible).

At first instance, Andrew Baker J struck out the committal application as an abuse of process on the basis the Claimants had brought committal proceedings in order to vex and harass Mr Deripaska and that the Claimants were motivated by personal animus.

However, the Court of Appeal held that Andrew Baker J’s judgment depended upon “fundamental misapprehensions” as to the factual basis of the alleged breaches as well as errors of law relating to the duties owed by an applicant bringing contempt proceedings and the relevance of an applicant’s subjective motives. The key points arising out of the court’s judgment are as follows.

The court (Carr LJ giving the lead judgment) held that there was an important distinction between “civil contempt” (i.e. committal proceedings arising out of breaches of orders/undertakings) and “criminal” / “public law” contempt (i.e. committal proceedings arising out of matters other than such breaches) (see paras 81 and 120). In the context of civil contempt:

1. Provided that the objective purpose of the application is to bring to the court’s attention serious breaches, an applicant’s subjective motive (e.g. personal animosity) is irrelevant and cannot form the basis for a strike out application (paras 82(vii), 110, 114, 122 and 127).
    
2. Applicants are not required to act as disinterested quasi-prosecutors acting solely in the public interest. Rather, they are entitled to pursue applications in a partisan fashion in pursuit of their legitimate private interests (paras 134 and 138).

Loveridge v Loveridge:

The Court of Appeal has handed down a second judgment in the case of Loveridge v Loveridge [2021] EWCA Civ 1697. Lance Ashworth QC and Dan McCourt Fritz (instructed by Stephen Rome and Georgia Morris at Thursfields Solicitors) were again successful. 

The judgment contains an interesting discussion about the proper treatment of informal loan finance within family companies, the outer limits of the unfair prejudice jurisdiction under ss.994-996 of the Companies Act 2006, and on the costs consequences of abortive committal applications.

Lunar Holdings Ltd v Lunar Caravans Ltd:

In Lunar Holdings Ltd v Lunar Caravans Ltd, Thomas Braithwaite blended IP and company law when he appeared in the IPEC for defendants accused of breach of a trade mark licence. A summary judgment application was defeated on the grounds that the claimant arguably did not have good title to the trade mark, having acquired it by way of an unlawful return of capital and disguised distribution by a company to its shareholder.

Kelly v Baker & Braid:

Lance Ashworth QC acts for the claimant in Kelly v Baker & Braid, a commercial court claim for damages for fraudulent misrepresentation and/or breach of fiduciary duty leading to the sale of a group of companies at an undervalue of over £110m.

Haz International Limited:

Matthew Morrison and Gregor Hogan act for Haz International Limited in connection with misfeasance proceedings alleging the diversion of business opportunities and other wrongs by a former director and shareholder. These have been consolidated with a just and equitable winding up/unfair prejudice petition presented by the defendant director/shareholder. The evidential stage of the trial (including the cross-examination of three Turkish witnesses via a translator) took place remotely over ten days in the Insolvency and Companies Court during January 2021. Closings will be presented in March 2021.

Re: H Limited:

In Re: H Limited, Timothy Collingwood QC acts for majority shareholders in BVI proceedings involving allegations against them of unfairly prejudicial conduct, where the Court has had to address the effect on the claim against the shareholders of an arbitration agreement in the company’s articles of association.

Medical Imaging Partners v St Joseph’s Independent Hospital:

In Medical Imaging Partners v St Joseph’s Independent Hospital, the question arose as to whether an MRI machine and other medical equipment subject to chattel leases had become annexed to land owned by a company in administration, so that title to the equipment passed to the purchasers of the business when the company’s assets were sold by the administrators. Thomas Braithwaite acted for the purchasers.

Re Keeping Kids Company; Official Receiver v Atkinson [2020] EWHC 2839 (Ch):

Gareth Tilley acted as junior counsel for the Official Receiver in Re Keeping Kids Company; Official Receiver v Atkinson, the disqualification proceedings arising from the collapse of the charity Kids Company. These are believed to be the first-ever proceedings for disqualification of charity trustees as company directors and they raise questions about the standard to be applied to unpaid trustee directors, whether a remunerated charity CEO can or ought to be classified as a de facto company director, and what degree of latitude the trustee directors have in relation to the pursuit of charitable objects when the company is of doubtful solvency.

Please see here for the judgment.

Ocean Sino:

Philip Jones QC was successful in the Privy Council in Ocean Sino, a case which involved a claim by one joint owner of a BVI company to wind it up on the just and equitable ground. He had previously acted at the original trial and before the BVI Court of Appeal.

Please click here to view the judgment.

Re Global-IP Cayman:

In Re Global-IP Cayman, Daniel Lightman QC, representing the majority shareholder in the Grand Court of the Cayman Islands, successfully argued before Parker J that (i) the case was an exception to the usual rule that the petitioning creditor should be awarded its costs of a winding-up petition (unrep, 21 July 2020) and (ii) the majority shareholder’s appointees to the company’s board had not been removed from office because on a proper interpretation of the company’s articles the relevant board meeting had been inquorate (unrep, 31 December 2020).

Loveridge v Loveridge [2020] EWCA Civ 1104:

Lance Ashworth QC and Dan McCourt Fritz acted for the successful Appellants in Loveridge v. Loveridge [2020] EWCA Civ 1104 overturning injunctions in an unfair prejudice petition and in partnership proceedings which had granted the running of the companies and partnerships to a minority shareholder and partner.  The Court of Appeal effectively put the majority back in charge.  Both the petition and the partnership proceedings continue and will come on for trial in 2022.

Please click here to view the article discussing the judgment, and here for the judgment.

Moutreuil v Andreewitch [2020] EWHC 2068 (Fam):

James Weale acted for the successful claimant in a dispute over the ownership of company which held a valuable Chelsea property in Moutreuil v Andreewitch [2020] EWHC 2068 (Fam). Following a 4-day trial, Cobb J held that the transfer of shares by Mr Andreewitch to his partner in order to insulate the property against creditors took effect as an outright gift. In related committal proceedings, which also formed the subject of hearing in the Court of Appeal [2020] 4 W.L.R. 54, James succeeded in an application to commit Mr Andreewitch for contempt of court [2020] 2 F.L.R. 812 for which he received a suspended sentence of 6 months [2020] EWHC 2068 (Fam).

A link to the judgment can be found here.

Re Dinglis Properties Ltd:

In Re Dinglis Properties Ltd, Daniel Lightman QC and Gregor Hogan represented the respondents to a section 994 petition. In a landmark judgment in June 2020 ([2020] 2 BCLC 607), Adam Johnson QC (sitting as a deputy High Court Judge) considered the impact of the Covid-19 crisis on the share purchase order which he had previously made.

Please click here to view the judgment. 

Saatchi v Gajjar [2019] EWHC 3472 (Ch):

Hugh Norbury QC and Mark Wraith appeared for the claimant in Saatchi v Gajjar [2019] EWHC 3472 (Ch), and obtained permission to continue a derivative claim arising out of alleged misappropriation by the defendant from a company involved in the storage and transportation of Mr Saatchi's art collection. 

De Silva v Lucas & Ribeiro:

Lance Ashworth QC and Zahler Bryan have been acting for the claimant in the case of de Silva v Lucas & Ribeiro, a claim in respect of the ownership of an Estonian holding company, which (through Estonian and Portuguese subsidiaries) owns a very substantial property development in Lisbon, Portugal.

Brown & Anor v MML Capital Europe VI Equity II SA & Ors [2020] EWHC 23 (Ch):

In Brown v MML Capital Timothy Collingwood QC acted for the petitioners in an unfair prejudice petition in which he succeeded in obtaining an injunction to restrain the continuation of disciplinary proceedings concerning disputed allegations of misconduct pending resolution of the Petition ([2020] EWHC 23 (Ch)).

Please click here to view the judgment.

Re Qunar Cayman Islands Ltd & Re Nord Anglia Education Inc:

Jonathan Adkin QC acted for a number of dissenting shareholders in two high-value company share appraisal actions arising under s.238 of the Cayman Islands Companies Law. In Re Qunar Cayman Islands Ltd he appeared in a three-week trial in the Grand Court of the Cayman Island for the determination of the fair value of a Chinese web-based travel company's shares. In Re: Nord Anglia Education Inc he acted in a three-week trial in the Grand Court for the determination of the fair value of shares in the world's leading private school business. 

Mahdavi v Sterling Avram:

Daniel Lightman QC and Zahler Bryan acted for the successful claimants in Mahdavi v Sterling Avram, a case arising from a multi-million-pound property fraud by a consultant engaged by a solicitors' firm. The proceedings raised novel questions about (i) the legal protection available against property fraud where the fraudster operates within a solicitors' firm and (ii) the availability of relief under s 61 of the Trustee Act 1925 to solicitors who have paid away client monies in breach of trust. 

Griffith v Gourgey:

In Griffith v Gourgey, Daniel Lightman QC, Adil Mohamedbhai and Emma Hargreaves continue to represent respondents to three unfair prejudice petitions seeking orders for the purchase of their shares in substantial property development companies. In November 2019, the Court of Appeal handed down its judgment ([2019] EWCA Civ 2046) on appeals against two rulings by Sir Nicholas Warren regarding strike-out of the petitions and amendment of another petition. 

Please click here to view the recent judgment. 

Glenn v Watson [2018] EWCH 2016 (Ch):

Elizabeth Jones QC, Justin Higgo, Gareth Tilley, Paul Adams, Zahler Bryan and Oliver Jones continue to act for Sir Owen Glenn and his company, Kea Investments Limited in their dispute with New Zealand businessman Eric Watson, following the judgment in Glenn v Watson [2018] EWCH 2016 (Ch) in which Kea suceeded in establishing its entitlement to set aside agreements relating to a joint venture etween Sir Owen and Eric Watson on the baiss of (i) fraudulent misrepresentations made on behalf of Mr Watson, (ii) breach of Mr Watson's fiduciary duty to Kea. The court gave an important decision on equitable interest, awarding interest of 6.5% compounded annually, at [2018] EWCH 2016 (Ch). Litigation continues as Kea seeks to enforce its judgment againts Mr Watson's assets in the UK and internationally. 

Please click here to view the judgment. 

Instant Access Properties v Rosser [2018] EWHC 756 (Ch):

Lance Ashworth QC and Matthew Morrison secured judgment secured judgment for the First Defendant , Mr Rosser in Instant Access Properties v Rosser successfully defeating a fraudulent trading and breach of fiduciary duty claim of £35 million.

Please click here to view the judgment. 

SerleShare:

'Loveridge v Loveridge [2020] EWCA Civ 1104' article by Lance Ashworth QC & Dan McCourt Fritz

'Judgment in Moutreuil v (1) Andreewitch (2) Pier Investment Company Ltd [2020] EWHC 2068 (Fam)' article by James Weale