"I understand that it is not possible for the case management software of the Practice to produce an historic time recorded report, therefore there is no information available as at30 June 2017 or31 March 2018 regarding the unbilled time recorded on the system. Ideally, I would have liked access to that information in order to assess any potential movement in the position of the work in progress at those dates. Had this been available, I would have assessed the potential value of contingent work in progress to determine whether to add any amounts to the balance sheet to calculate a true net asset position …. Given the work types undertaken by the Practice, I have assumed any level of contingent WIP to be immaterial, and have made no adjustment to the balance sheet valuation and so the multiple of profits remains the most appropriate valuation method."
"encouraging staff to leave the company for the new firm; taking files from the company to the new firm; inviting clients to leave the company for the new firm; starting to work for the new firm; taking pre-split work-in-progress for the benefit of the new firm; and doing any of these matters while remaining a director and/or a shareholder of the company; and doing any of these while the terms of the split, including the financial terms, remained un-agreed"
"105. The issue, therefore, should now be straightforward. I have already described that the court ordered the instruction of a single joint expert to value the shares. The parties duly jointly instructed that independent expert. He produced a valuation on the two relevant bases. The parties asked some supplementary points to which he responded in writing. So the matter stood until last Friday, the fourth or fifth day of the trial, when [counsel for Mr Taylor] raised a new issue on the valuation report which had hitherto been presented to me as, in effect, unchallenged by either party. 106. [Counsel for Mr Taylor] produced three draft questions which he suggested I should send to the expert. The questions did not simply ask for clarification of what was in the valuation report but raised issues with which the report had not dealt. In particular, proposed question 2 asked, 'What would be the impact on each of your share valuations of a balance on the directors' loan account of£445,000 comprising Mr Taylor£229,000 and Mr Goodchild£215,000 and retained profits of£597,000 ?' (I have rounded those figures for convenience). Question 3 was extremely convoluted and, as well as raising new issues, was very difficult to understand. [Counsel for Mr Taylor] accepted that there would need to be some redrafting of the questions. 107. I refused to permit these questions to be sent to the expert. The issues they raised would have affected the timetable of the trial. There would almost certainly have needed to be a further report by the expert, and cross-examination of him would have been virtually inevitable. An adjournment would have been the likely result. Such a result would have been disproportionate in terms of additional expense and delay and would have been unfair to the petitioner. [Counsel for Mr Taylor] therefore indicated that he would deal with the matter in submissions. 108. What the issue amounts to is this. In paragraph 9.9.6 of the expert report, the expert states that: '…each valuation of the shares of the respondent [ie whether as at March 2018 or June 2017 and whether on a continuing or exiting basis] has been treated separately to any balance owed by/to the company by/to the respondent, an issue which will require separate consideration.' The expert valued the shares on the 'maintainable profit' basis rather than on a net asset valuation basis because he said that the recoverable value of the net assets of the company (taking account of the directors' loan accounts) was lower than the value produced by the maintainable profits approach, and that in those circumstances valuations of professional practices should adopt the latter approach. 109. The first respondent now complains that this leaves him prima facie liable to repay his directors' loan account (or the balance of it after the value of the shares to be paid to him by the petitioner are taken into account). 110. [Counsel for Mr Taylor] submitted that in these circumstances I should not adopt the share valuations in the single joint expert's report, but should increase those valuations by some or all of the amount owed by the first respondent to the company. This would wholly, or partly, extinguish his directors' loan account and compensate for the lack of a declaration of dividend in 2016 and 2017. The problem with this submission, as [counsel for Mr Goodchild] points out, is that I would have to descend into the expert's arena, and in effect decide how much of the first respondent's loan account should be written off as dividend or how much of it should otherwise be added to the value of his shares, but without any material with which to make such an assessment. It is quite impossible for me to do so. 111. The expert said that the loan accounts would require 'separate consideration'. I do not consider that it is my role to give them such consideration in the context of this case, nor do I have the wherewithal to do so. If the first respondent had wished the expert to opine on this issue, he should have raised it when the report was received, at the very latest some weeks ago, and when other matters were being raised by the parties with the expert. 112. I therefore propose to use the valuations in the single joint expert report. I acknowledge that this leaves some matters unresolved between the parties, but that is unavoidable. It would obviously be highly undesirable for there to be further litigation between them, and one hopes that they will find a way of resolving remaining issues without recourse to the courts."
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
"50. Proposition ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others. 51. Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all. 52. It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out. I could not help wondering whether the defendants in this case would have given their lawyers the same instructions on the question whether they should have been sued in the first action if they had been asked before that action began as they have given now that a later action has been begun. 53. It is clear from the speeches of both Lord Bingham and Lord Millett that all depends upon the circumstances of the particular case and that the court should adopt a broad merits based approach, but it is likely that the most important question in any case will be whether C, D, E or any other new defendant in a later action can persuade the court that the action against him is oppressive. It seems to me to be likely to be a rare case in which he will succeed in doing so."
"there is a real public interest in allowing parties a measure of freedom to [choose] whom they sue in a complex commercial matter and not to give encouragement to bringing a single set of proceedings against a wide range of defendants or to complicate proceedings by cross-claims against parties to the proceedings"
"However desirable it may be for a party to bring all his claims forward in one go, the abuse principle, as the judgments in the Stuart case[2008] 1 WLR 823 underline, does not bar a claim simply because someone fails to raise a claim when he could have done so. The facts must be such that the second action amounts to an abuse of process before it can be struck out."
"29. I also wish to add a word as to the approach that should be adopted if a similar problem arises in the future. In circumstances such as those that arose in this case, the proper course is to raise the issue with the court. Aldi did write to the court … , but not in terms that made it clear what the court was being invited to do. WSP and Aspinwall knew of Aldi's position and were before the court on numerous occasions; they did nothing to raise it. 30. Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi in a manner proportionate to the size of Aldi's claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have inquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation. 31. However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future."
"For my part, I do not think that parties should keep future claims secret merely because a second claim might involve other issues. The proper course is for parties to put their cards on the table so that no one is taken by surprise and the appropriate course in case management terms can be considered by the judge. In particular parties should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim may involve other complex issues. On the contrary they should come clean so that the court can decide whether one or more trials is required and when. The time for such a decision to be taken is before there is a trial of any of the issues. In this way the underlying approach of the CPR, namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly can be forwarded and not frustrated."
"I only add by way of postscript that litigants and their advisers should heed the points made by this court in the Aldi Stores Ltd case and underlined here that the approach of the CPR is to require cards to be put on the table in cases of this kind or run the risk of a second action being held to be an abuse of the process."
"(a) regulate the conduct of the company's affairs in the future; (b) require the company– (i) to refrain from doing or continuing an act complained of, or (ii) to do an act that the petitioner has complained it has omitted to do; (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; (d) require the company not to make any, or any specified, alterations in its articles without the leave of the court; (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company's capital accordingly."
"Quite apart from anything else undesirable, pursuing relief in respect of the CAL loans by way of an unfair prejudice petition rather than by way of a derivative action would entail the risk of the respondents or one or more of them facing a claim for such relief in a derivative action after the petitioners had failed to obtain the same in the petition."
"62. As a general rule, in my opinion, the court should not in a s.168A [i.e. unfair prejudice] petition make an order for payment to be made by a respondent director to the company unless the order corresponds with the order to which the company would have been entitled had the allegations in question been successfully prosecuted in an action by the company (or in a derivative action in the name of the company). If the order does not so correspond then, either the company will have received less than it is entitled to, in which case it will be entitled to relitigate the issue in an action against the director for the balance, or the company will have received more than it was entitled to, in which case a clear injustice to the director will have been perpetrated. Nor, in my opinion, should the court allow a prayer in the petition for payment by the respondent director of compensation or of restitution to the company to stand unless it is clear at the pleading stage that a determination of the amount, if any, of the director's liability at law to the company can conveniently be dealt with in the hearing of the petition. In any other case, in my opinion, if the allegations against the director are proper to be relied on as evidence of unfairly prejudicial conduct, the appropriate relief to be sought would be an order under s.168A(2)(b) for a derivative action to be brought for the recovery of the sum legally due. It would be proper for the company to express its views as to whether it would be in its interests for such an action to be brought. 63. Moreover, the use of a s.168A petition in order to circumvent the rule in Foss v Harbottle (1843) 2 Hare 461 in a case where the nature of the complaint is misconduct rather than mismanagement is, in my opinion, an abuse of process."
"Unfair prejudice proceedings are concerned to bring mismanagement to an end; derivative actions are concerned to provide a remedy for misconduct: see Re Charnley Davies Ltd (No.2)[1990] BCLC 760 ; Re Chime Corp Ltd(2004) 7 HKCFAR 546 . While the court may have jurisdiction in the strict sense on a petition under s.168A to order payment of compensation to the company, the derivative action is the proper vehicle for obtaining such relief where the plaintiff's complaint is of misconduct rather than mismanagement: see Re Chime Corp Ltd at p.571."
"In my judgment, this is a weighty factor which strongly supports the conclusion that the Company's pursuit of the WIP Claim and the Account of Profits Claim for the ultimate benefit of Mr Goodchild is an abuse of process. For reasons that I have explained, the clear inference from the two bases of valuation of Mr Taylor's shares was that the Company would not have any future right to recover monies in respect of the Retained Files WIP or the profits from the diverted business. In my view, the onus lay clearly upon Mr Goodchild, who had originally raised such issues in his prayer for relief and was then seeking to take advantage of Mr Poole's approach to valuation to acquire Mr Taylor's shares at the lowest possible price, to raise the possibility that he might subsequently wish to cause the Company, which he would then wholly own and control, to seek to recover compensation or an account of profits from Mr Taylor in respect of those matters. To use the phrase from Aldi , there can be no excuse for his failure to do so"; iv) Application of the Aldi guidelines is "particularly apposite in the context of unfair prejudice petitions concerning small private companies, where there is a regrettable tendency for disputes over the breakdown of relations between shareholders to become deeply personal, hostile and lengthy" (paragraph 103). "