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Area of Law: Daniel Lightman KC
Section 221(1) of the Insolvency Act 1986 provides that “any unregistered company may be wound up under this Act”. By section 220, ““unregistered company” includes any association and any company, with the exception of a company registered under the Companies Act 2006 in any part of the United Kingdom.” Does the use of the word “includes” mean that entities other than associations and companies can be wound up under section 221(1)?
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Daniel Lightman KC and Reuben Comiskey (of Radcliffe Chambers), instructed by Stephen Baker of Herrington Carmichael, represented the successful appellants in Docklock Limited v C Christo & Co Limited [2024] EWCA Civ 45.
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The High Court has found that myriad claims against the former directors of BHS fall to be struck out in the context of the high-value, complex litigation being brought by the joint liquidators of the BHS companies against the former directors of those companies.
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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”.
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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”.
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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).
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In Christoforou v Christoforou [2020] EWHC 1196 (Ch) the High Court struck out allegations of dishonesty, fraud, and illegality from an Amended Defence and excluded those allegations from consideration (and cross-examination) at trial. Giving judgment HH Judge Stephen Eyre QC (sitting as a High Court Judge) found that the allegations amounted to similar fact of evidence but that they were of “peripheral” value to the Claimant’s claim that a London property is held on trust for him pursuant to a common intention constructive trust. Allowing the allegations to remain, he held, would have greatly increased the cost, and risked an adjournment, of the trial. Daniel Lightman QC and Stephanie Thompson represent the Claimant. The trial is due to take place in July 2020.
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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.
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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.
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