“(A) The Company currently has an issued share capital of£ 3,370 , divided into 3,370 A Shares of£ 1.00 each, all of which are fully paid. (B) Each Initial Shareholder is the registered owner of the number and class of Shares set out opposite his name in Part 1 of Schedule 1. (C) The parties have agreed to enter into this agreement as a deed for the purpose of regulating the exercise of their rights in relation to the Company and for the purpose of making certain commitments as set out in this agreement.”
“3. Increase or reduce the amount of its issued share capital, grant any option or other interest over or in its share capital, redeem or purchase any of its own shares, sell, transfer or cancel any shares held from time to time in treasury or otherwise alter, or effect any reorganisation of, its share capital. 4. Permit the registration (upon subscription or transfer) of any person as a member of the Company other than pursuant to an allotment or transfer permitted or required by, and made in accordance with, this agreement or the Articles.”
“A Shareholder is deemed to have served a Transfer Notice under clause 6.4 immediately before any of the following events: (a) the Shareholder’s death; (b) a bankruptcy petition being presented for the Shareholder’s bankruptcy, or an arrangement or composition being proposed with any of his creditors, or where he otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors; (c) the Shareholder lacking capacity (undersection 2 of the Mental Health Act 2005 ) to make decisions in relation to the Company or his shareholding unless he/she has a valid registered power of attorney in place; and (d) the Shareholder committing a material or persistent breach of this agreement which, if capable of remedy, has not been so remedied within 10 Business Days of notice to remedy the breach being served by the Board (acting with Shareholder Consent).”
“(d) if the Seller is deemed to have given a Transfer Notice as a result of clause 7.1(d), the Transfer Price shall be restricted to a maximum of the lower of the subscription price paid in respect of each Sale Share, including any share premium, and the Fair Value of each such Sale Share; and (e) the Seller does not have a right to withdraw the Deemed Transfer Notice following a valuation.”
“Each holder of any A Shares shall have the exclusive right to appoint one director as an A Director, at all times during the continuance of this agreement. The holder(s) of the A Shares shall also have the exclusive right by notice to the Company remove and replace any directors appointed in accordance with this clause 13.2.”
“In relation to any transaction of the Company which requires a decision of the Board of Directors, the Controlling Shareholder Director [i.e. the director appointed by Gwent] shall be entitled to have such number of votes as enables him/her to carry or defeat any proposal for a resolution of the directors.”
“Without prejudice to any argument we might have that the [SHA] never came into force and effect, we are writing to you today to give notice to terminate (or cancel) the SHA with immediate effect. Our termination is on the grounds that the SHA is based on a fundamental flaw, namely that the Initial Shareholders included Mr … Kulkarni owning 1,652 A Shares in [the Company]. By contrast, Mr Kulkarni only owned 1 A Share and he did not properly subscribe for, nor was he issued with, any additional 1,651 A Shares. Our termination of the SHA is without prejudice to any other rights or remedies we might have, and we reserve all those rights and remedies. You do not have to acknowledge this letter for it to be effective. However, we would be grateful if you could acknowledge receipt by return email.”
“[Gwent’s solicitors] agreed to the proposal on27 September 2021 . Shareholder approval for the buyback of the A and B Shares was granted by way of written resolution on29 September 2021 . The shares were returned to [the Company], which held them in treasury, and the purchase price refunded to Gwent. This is what the Defendants rely on to show remediation of the A and B Shares Breaches. On26 May 2022 following unconditional payment by Mr Kulkarni of£80,000 [the Company] transferred to him the A shares that it held in treasury.”
“A Shareholder is deemed to have served a Transfer Notice under clause 6.4 immediately before any of the following events: … (d) the Shareholder committing a material or persistent breach of this agreement which, if capable of remedy, has not been so remedied within 10 Business Days of notice to remedy the breach being served by the Board (acting with Shareholder Consent).”
“Where the breach is capable of remedy the plain reading of the language of the clause as a whole is that no Transfer Notice is deemed served until the 10 Business Day remedy period has expired. The 10 Business Day period only starts once the notice to remedy is served. Here, no notice to remedy was ever served, so the 10 Business Day period has not yet started to run and so cannot have expired. As such, the deeming conditions have not been satisfied and no Transfer Notice is therefore deemed served.”
“65. In addition, cl.6 of the shareholders’ agreement and the pre-emption provisions in the articles set out circumstances in which members may lose the right to their shares. They are, therefore, expropriatory in nature. Given the ambiguity in the meaning of the phrase ‘becomes enforceable’, the court should in my judgment prefer the narrower meaning. This approach is consistent with the earlier decisions of this court on construing articles of association of a company restricting the transfer of shares laid down in: Re Smith and Fawcett Ltd[1942] Ch. 304 at 306 and Greenhalgh v Mallard [1943] 2 All E.R. 234 at 237: see, for example, per Lord Greene M.R. in the first of the cases cited: ‘[When using their power under the articles to reject a share transfer, the directors] must have regard to those considerations, and those considerations only, which the articles on their true construction permit them to take into consideration, and in construing the relevant provisions in the articles it is to be borne in mind that one of the normal rights of a shareholder is the right to deal freely with his property and to transfer it to whomsoever he pleases. When it is said, as it has been said more than once, that regard must be had to this last consideration, it means, I apprehend, nothing more than that the shareholder has such a prima facie right, and that right is not to be cut down by uncertain language or doubtful implications. The right, if it is to be cut down, must be cut down with satisfactory clarity. It certainly does not mean that articles, if appropriately framed, cannot be allowed to cut down the right of transfer to any extent which the articles on their true construction permit.’ … 67. In my judgment, the authorities reflect the basic principle that rights of property should not be taken away by a side wind and without warrant ….”
“The Sponsors may terminate this Agreement with immediate effect on the giving of written notice to SPYKER at any time on the happening of any of the following events by or in relation to the other party: (a) SPYKER has committed any material breach of this Agreement which, if capable of remedy, has not been remedied within ten (10) Business days of receipt of written notice giving particulars of the breach and requiring its remedy ….”
“I therefore reject the submission that the breaches in this claim were irremediable for all purposes where they were repudiatory in nature. To the extent they were repudiatory then neither Gwent nor [the Company] could deprive Mr Kulkarni of any right he had to terminate through tendering late or alternate performance. That is irrelevant here because Mr Kulkarni either never had that right (which I understand to be his case) or gave it up through affirming the SHA. Either way, finding that the breaches were remediable for other purposes does not deprive him of what Jacob LJ described as ‘his clear choice: affirm or go’.
“It appears to me that clause 11 (a) (i) is intended to apply to all material breaches of the agreement which are capable of being remedied. The question then is what is meant in this context by the word ‘remedy.’ It could mean obviate or nullify the effect of a breach so that any damage already done is in some way made good. Or it could mean cure so that matters are put right for the future. I think that the latter is the more natural meaning. The word is commonly used in connection with diseases or ailments and they would normally be said to be remedied if they were cured although no cure can remove the past effect or result of the disease before the cure took place. And in general it can only be in a rare case that any remedy of something that has gone wrong in the performance of a continuing positive obligation will, in addition to putting it right for the future, remove or nullify damage already incurred before the remedy was applied. To restrict the meaning of remedy to cases where all damage past and future can be put right would leave hardly any scope at all for this clause. On the other hand, there are cases where it would seem a misuse of language to say that a breach can be remedied. For example, a breach of clause 14 by disclosure of confidential information could not be said to be remedied by a promise not to do it again.”
“The judge, without citing this authority, recorded the sponsors’ counsel as accepting that the authorities ‘favour a practical rather than an unduly technical test’. I think that is right. The judge concluded that any breaches of cll.4.6 or 4.7 were remediable, in the sense that Force India ‘could have put matters right’, either by changing the team name back to Etihad Aldar Spyker F1 Team and/or by reverting to the previous livery and removing the Kingfisher logo. However, in my judgment, these were not remediable breaches. The closest analogies are with the publication of confidential information or the publishing of advertising matter not containing a party’s name: one releases information which should be kept confidential, the other broadcasts a product in an inappropriate way. Looking at the matter pragmatically and not technically, I think that a proper marketing campaign is, generally speaking, all of a piece. Where Dr Mallya and Force India had persistently marketed the team as ‘Force India’ to the Indian market and had publicised the car’s new livery with deployment of the Kingfisher logo, and where Kingfisher was so much associated with Dr Mallya himself and he with Force India, and where, as Dr Mallya himself said in his interview which appeared on Force India’s website on October 11, 2007, ‘The name is an integral part of the team identity’, which I regard as truly said, the marketing genie cannot be put back into the bottle. The breach is irremediable. This conclusion is to my mind re-emphasised where the breach or breaches are repeated, cumulative, continuing and repudiatory.”
“A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice— (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.”
“In my judgment, except in a case of breach of a covenant not to assign without consent, the question is: whether the remedy referred to is the process of restoring the situation to what it would have been if the covenant had never been broken, or whether it is sufficient that the mischief resulting from a breach of the covenant can be removed. When something has been done without consent, it is not possible to restore the matter wholly to the situation which it was in before the breach. The moving finger writes and cannot be recalled. That is not to my mind what is meant by a remedy, it is a remedy if the mischief caused by the breach can be removed. In the case of a covenant not to make alterations without consent or not to display signs without consent, if there is a breach of that, the mischief can be removed by removing the signs or restoring the property to the state it was in before the alterations.”
“64. In those circumstances it seems to me that the proper approach to the question of whether or not a breach is capable of remedy should be practical rather than technical. In a sense it could be said that any breach of covenant is, strictly speaking, incapable of remedy. Thus, where a lessee has covenanted to paint the exterior of demised premises every five years, his failure to paint during the fifth year is incapable of remedy, because painting in the sixth year is not the same as painting in the fifth year, an argument rejected in Hoffmann v Fineberg[1949] Ch 245 , 253, cited with approval by this court in Expert Clothing Service and Sales Ltd v Hillgate House Ltd[1986] Ch 340 , 351c-d. Equally it might be said that where a covenant to use premises only for residential purpose is breached by use as a doctor’s consulting room, there is an irremediable breach because even stopping the use will not, as it were, result in the premises having been unused as a doctor’s consulting room during the period of breach. Such arguments, as I see it, are unrealistically technical. 65. In principle I would have thought that the great majority of breaches of covenant should be capable of remedy, in the same way as repairing or most user covenant breaches. Even where stopping, or putting right, the breach may leave the lessors out of pocket for some reason, it does not seem to me that there is any problem in concluding that the breach is remediable. That is because section 146(1) entitles the lessors to ‘compensation in money... for the breach’ and, indeed, appears to distinguish between remedying the breach and paying such compensation.”
“The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body— (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated.”
“31. In my view the answer is to be found by a practical inquiry whether and if so how (to adapt the words of Staughton LJ in the Savva case) the mischief resulting from Mr Telchadder’s breach could be redressed. In relation to a breach of a covenant against anti-social behaviour, there is no escape from the conclusion that the inquiry requires a value judgment on the part, first, of the covenantee and, then, of the court in determining whether the requirements of section 146(1) of the 1925 Act, or, as the case may be, of the paragraph 4 term have been satisfied. Had Mr Telchadder not only jumped out at Miss Puncher [i.e. another occupier at the site] but, for example, deliberately perpetrated a significant injury on her, Wickland might well have been entitled to conclude that the breach was irremediable; that there was therefore no need for it to serve a notice to remedy; that it should apply directly to the court under the paragraph 4 term; but that, as a prelude to doing so, it should notify Mr Telchadder of its proposed application and of its reasons for having concluded that the breach was irremediable and that therefore there was no need for it to serve a notice to remedy. Obviously there would have been a risk that the circuit judge would either have disagreed with Wickland about the irremediability of the breach or have declined to consider it reasonable for the agreement to be terminated. Nevertheless, by reference only to the simple facts postulated, Wickland might have contemplated that risk with equanimity. 32. But Mr Telchadder’s breach was in no way of that gravity. To an inquiry whether, and if so how, the mischief resulting from it could be redressed, the practical response is to say: yes, of course it can be redressed by his committing no further breach of his covenant against anti-social behaviour for a reasonable time.”
“51. The interpretation ofparagraph 4(a) of the Mobile Homes Act 1983 raises the question what is required to remedy a breach. A linked question is, ‘what is the correct procedure if a breach cannot be remedied within a reasonable time?’ 52. I agree with Lord Wilson JSC that the answer to the first question calls for a practical approach, that is, whether and how the mischief caused by the breach can be redressed. The context is a relationship between an occupier of land and the owner of the land, who also has responsibilities towards others living in close proximity including the elderly and vulnerable. In a case of anti-social behaviour by an occupier towards a neighbour, much must depend on the nature of the conduct in determining whether and how the mischievous effect of a particular breach may be remediable. 53. A minor incident may not be expected to cause lasting harm to the peace of mind of other residents. In some cases an apology may be an appropriate means of redress. But human nature being what it is, there may be cases (for example, involving serious violence or threats of violence) where the conduct is such as to cause physical harm or feelings of fear and anxiety which the injured person could not be expected to get over within a reasonable time period, regardless of the other person’s subsequent behaviour. There is no reason why neighbours, especially if elderly and vulnerable, should be expected to live for months (let alone years) in a state of fear and anxiety.”
“This account of the alternative courses which may be taken in response to a repudiatory breach leaves no space for repentance by a party which has not simply threatened a fundamental breach or forewarned the other party of it but has crossed the Rubicon by committing it. From that point all the cards are in the hand of the wronged party: the defaulting party cannot choose to retreat. What it can do is invite affirmation by making amends.”
“52. … I do not share Sedley LJ’s regret in holding that a repudiatory breach of contract, once it has happened, cannot be ‘cured’ by the contract breaker. Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party’s right to go. He should have a clear choice: affirm or go. Of course the wrongdoer can try to make amends—to persuade the wronged party to affirm the contract. But the option ought to be entirely at the wronged party’s choice. 53. That has been the common law rule for all kinds of contract for centuries. It works. It spells out clearly to parties to contracts that if they actually commit a repudiatory breach, then whether the contract continues is completely out of their hands. The rule itself discourages repudiatory breach. In the context of employment law it means that employers know that if they treat an employee so badly as to commit a repudiatory breach, then they cannot hang on to the employee unless they can persuade him or her to decide to stay.”
“any termination on the grounds of actual breach would have to take place in accordance with clause 15B. This is so in my view, even if the breach was of a condition or repudiatory. I for my part doubt whether there is any distinction to be drawn between the ‘substantial’ breach required by that clause and a breach of condition or repudiatory breach …. The requirement, in the case of a remediable breach, that a notice to remedy should have been given and a 90 day period should have elapsed before any termination does not persuade me that the parties must have had in mind breaches which were less than repudiatory. I therefore consider that substantial should be read as equivalent to repudiatory.”
“The Learned Judge was wrong to exclude from consideration of the construction of the SHA (and thus from the concept of remediability) the pre-existing relationship between the parties, and in particular (a) [Mr Kulkarni] and (b) Mr David Lewis, the shadow director and ultimate beneficial owner of [Gwent], and Mrs Jayne Lewis, the director.”
“443. … [Mr Lewis] secured control of the board, a reduction of Gwent’s capital investment and the majority of the A shares. All of this was conceded reluctantly by Mr Kulkarni – not because of any sense of friendship for Mr Lewis but because he had no choice. 444. On the issue of control it is important to be clear on what insisting on control for Gwent meant in practice. As Mr Kulkarni described it in his witness statement, following the ouster of Mr Staples and Mr Jenkins, ‘I ran the Hospital and appointed a new board to help me.’ Mr Lewis was taking control away from Mr Kulkarni. This was the ‘ruthless’ Mr Lewis that Mr Davies described to me. I stress that this is no criticism of Mr Lewis; but it was the act of a businessman, not of a friend. 445. Moreover, Mr Kulkarni was prepared to respond in kind, albeit he had much the weaker hand. When Mr Lewis pushed too far at the Pre-Meeting, Mr Kulkarni threatened to collapse the whole transaction if he did not secure some concession. I have found that the concession he secured was inadequate, but the method he used is what matters here. This was not a loose arrangement between friends. It was a business negotiation. 446. By the time negotiations entered January and February 2020 Mr Lewis did nothing to suggest that he was acting as a friend and everything to show that he was acting as a commercial investor. Mr Davies saw that clearly, and repeatedly told Mr Kulkarni to operate on the same basis.”
“I do not accept that there was a relationship of trust and confidence or anything resembling it either in the negotiation of the SHA or on the terms of the SHA as agreed. This was a commercial arrangement.”
“As I have noted, the test is a practical one – could the breach be put right for the future – and so the practicalities are significant. Here, as a practical matter it plainly was straightforward to reverse the allotment and issue of both the A and B Shares. Reversing an erroneous allotment and issue of shares to Gwent could not, in my view, reasonably be said to give rise to a conflict of interest for Gwent’s appointed director, Andrew Lewis. In such circumstances, Gwent controlled the board under clause 14.5, such that the board of [the Company] could move swiftly. Gwent also held the overwhelming majority of the shares in [the Company] and could pass the necessary resolutions without cooperation from other shareholders. This is not judging the situation with hindsight; that was obvious at the time of the breach.”
“The issue for Mr Kulkarni is that the SHA did continue in force. Put another way, the Termination Breach did nothing at all; on Mr Kulkarni’s case it did not even give him a right to accept the renunciation that it represented. Even if that is wrong and the breach could have been accepted, Mr Kulkarni did not do so and so under the elective theory nothing changed with the SHA. Of course, the breach gave Mr Kulkarni a right to claim damages, but he has not done so and in any event, a breach that sounds in damages is by definition remediated by an award of those damages. Certainly the breach was a serious one, given its repudiatory nature, but even serious breaches can be remedied, especially those that have changed nothing. It was not so much a question of putting the genie back in the bottle; the genie never truly left.”
“464. I have noted above that exclusion from management may well be irremediable. The difficulty for Mr Kulkarni on the facts, however, is that the breach of clause 13.2 is not what excluded Mr Kulkarni from the management of [the Company]. He ceded management control to Gwent in principle on7 February 2020 and legally on executing the SHA on13 February 2020 . The exclusion of Mr Kulkarni from the entire process of management was plainly still wrongful and a breach of the SHA. If he suffered loss he would be entitled to damages; it may be that he would be entitled to an injunction to remedy the situation going forward, and indeed at one point he sought such relief in these proceedings. But at no stage could he exercise control over the affairs of the company for reasons wholly unrelated to any breach by Gwent. 465. Mr Butler suggested that the denial of access to information was itself sufficient prejudice to show the breach was irremediable. Again, I accept that the denial of access to information on the management and affairs of [the Company] was wrongful. I further accept that at least some prejudice is likely to flow from that breach. But the test is not prejudice looking back but, rather, whether the situation can be remedied going forward. It is not suggested, even with Mr Hussain having been a director for over a year, that anything has come out that Mr Kulkarni now wishes he had known sooner. Moreover, it would have made no difference to the running of [the Company], whatever Mr Kulkarni might have gleaned, because Andrew Lewis by the time of the breach had formed a clear view that Mr Kulkarni had nothing of value to add and I am certain would simply have ignored him; by virtue of clause 14.5 of the SHA, there was nothing that Mr Kulkarni could do about that. He repeatedly tried to lobby Mr Lewis and failed, and I see no reason to think by the time of the Hussain Breach, that anything he might have learnt was either unknown to Mr Lewis or would have influenced him in any way. 466. By the time of the [Hussain] Breach, Mr Kulkarni was frozen out of management decisions by Gwent, which Gwent was able to do by virtue of clause 14.5 of the SHA. The [Hussain] Breach was wrongful, because it froze Mr Kulkarni out of the process as a whole, not simply the final decision-making, but it was also gratuitous; having Mr Hussain in place would not have changed the terms of the SHA and would not have given Mr Kulkarni any influence over [the Company].”
“Mr Butler further submitted that the time period of 10 Business Days within which remediation was to be achieved is relevant to assessing whether a breach is remediable. Something that would take longer than 10 Business Days to remedy could not be considered remediable for the purposes of clause 7.1(d). It seems to me that as a simple matter of logic that must be correct.”
“Materiality and irremediability are different concepts but there is a degree of overlap between them. Thus, if one considers the consequences of the breach, [counsel for Cobweb] contends that [Phoenix Media]’s breaches were deliberately committed and dishonestly concealed. It seems to me that, if that is right, it would be a factor which would go to both materiality and irremediability; materiality because it would make the breaches graver, and irremediability because it would be easier to argue that the breaches irrevocably and negatively impacted upon what would otherwise be an ongoing business relationship involving trust and confidence between the parties, as clause 15 reflects. Nonetheless, they are different concepts.”
“In one sense, irremediability of a breach is impossible. The example that is frequently given is this: if there is an obligation on a tenant to paint in the fifth year of the term and he fails to do so, that is irremediable because, even if he paints thereafter, he has not painted in the fifth year of the term. Yet failing to paint in the fifth year of the term is clearly remediable. To my mind, therefore, irremediability has to be interpreted in a common sense way.”
“Breach of a charterparty by the detention of the vessel beyond the laydays by the charterers may, in my view, take on the character of a fundamental breach. If, for instance, there was a delay of many weeks in the loading of the vessel the consequence would be that the voyages, though in fact consecutive, would be totally different from those contemplated by the contract. Further, if it was established that a breach, though of itself not of sufficient duration as to lead to the conclusion that the performance of the contract became totally different from that contemplated, was committed deliberately and wilfully with the object of reducing the number of voyages accomplished, the breach might, in my opinion, take on the character of a fundamental breach. It is only in this connection, in determining whether there has been repudiatory conduct, that, in my opinion, the wilfulness of the breach has any relevance.”
“The appellants allege that the respondents caused these delays deliberately (i.e., with the wilful intention of limiting the number of contractual voyages). They do not allege fraud or bad faith. This allegation would appear to cover a case where the charterers decided that it would pay them better to delay loading and discharge and pay the resulting demurrage at the relatively low agreed rate, rather than load and discharge more speedily and then have to buy more coal and pay the relatively high agreed freight on the additional voyages which would then be possible. If facts of that kind could be proved I think that it would be open to the arbitrators to find that the respondents had committed a fundamental or repudiatory breach. One way of looking at the matter would be to ask whether the party in breach has by his breach produced a situation fundamentally different from anything which the parties could as reasonable men have contemplated when the contract was made. Then one would have to ask not only what had already happened but also what was likely to happen in future. and there the fact that the breach was deliberate might be of great importance.”
“My Lords, in view of the introduction in the questions posed by the arbitrator of the impact of a presumed wilful default, for my part I think it is only necessary to say that it seems to me as a matter of general principle that wilful default in connection with the matters we are now considering is relevant and relevant only to one matter, that is to say, whether in fact the owners can establish a fundamental breach. In cases such as this, where there has been no breach of any fundamental term, the question as to whether there has been a fundamental breach must be a question of fact and degree in all the circumstances of the case, but one of the elements in reaching a conclusion upon that matter is necessarily the question as to whether there has been a wilful breach, for as a practical matter it cannot be doubted that it is easier to find as a fact, for such it primarily is, that the charterers are evincing an intention no longer to be bound by the terms of the contract and are therefore guilty of repudiatory conduct if it can be established that the breaches have been wilful and not innocent.”
“The ‘deliberate’ character of a breach cannot, in my opinion, of itself give to a breach of contract a ‘fundamental’ character, in either sense of that word. Some deliberate breaches there may be of a minor character which can appropriately be sanctioned by damages: some may be, on construction, within an exceptions clause (for example, a deliberate delay for one day in loading). This is not to say that ‘deliberateness’ may not be a relevant factor: depending on what the party in breach ‘deliberately’ intended to do, it may be possible to say that the parties never contemplated that such a breach would be excused or limited: and a deliberate breach may give rise to a right for the innocent party to refuse further performance because it indicates the other party’s attitude towards future performance. All these arguments fit without difficulty into the general principle: to create a special rule for deliberate acts is unnecessary and may lead astray.”
“On the construction of this contract I am of opinion that the parties have agreed to limit the damages payable for detention at the agreed demurrage rate and that there is no reason for not so limiting them whether or not there was an intention on the part of the respondents wilfully to limit the number of voyages.”
“280. To achieve his goal of financial stability Andrew Lewis needed to pin matters down, including Mr Kulkarni. But Mr Kulkarni did not want to be pinned down; he hoped that something would turn up to resolve matters, that Mr Lewis would come through on the agreement that Mr Kulkarni thought they had reached. Initially Andrew Lewis knew of no such agreement and found Mr Kulkarni evasive, someone who did not honour his significant debts. Mr Kulkarni offered no clarity when it would have been easy for him to do so. Over time Andrew Lewis came to understand that something had been agreed, but that something was unclear and, I think he genuinely (and rightly) believed, unenforceable …. 281. … A sense of mistrust built on both sides. That spilled over in June 2020 when Andrew Lewis, tired of what he saw as Mr Kulkarni’s constant evasion and prevarication and concerned by his imminent return to the Hospital, decided to force matters. 282. He unquestionably went about that in entirely the wrong way, but the question is not so much his methods as what they reveal. I accept that by this stage he wanted Mr Kulkarni out of the business, but not because of some visceral dislike of Mr Kulkarni, less still because of unfortunate first impressions. Andrew Lewis took a business view that whatever Mr Kulkarni added to the business could be readily replaced. He did not rate him as a director …. 283. Andrew Lewis concluded something needed to be done, and he was the one to do it. One does not have to accept that Andrew Lewis was right on all or any of those points to see that they were within the range of decisions that the management of a business frequently has to consider. Where Andrew Lewis went wrong, and I accept he went badly wrong, was in the way he chose to implement his view, but that showed poor management and judgement, rather than some personal animus. In my view this was purely the breakdown of a business relationship.”